127 N.Y. 500 | NY | 1891
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The plaintiff and his assignors agreed to deliver their milk at the defendant's factory for that purpose, and he undertook, for a stipulated compensation, to there manufacture from it butter and cheese, sell such products and distribute between them the proceeds in the manner provided for by the agreement. The contract was one of bailment involving the performance of service by the defendant, and in the result the parties were mutually and benefically interested. (Mallory v. Willis,
It is urged that the referee erred in his conclusion that the plaintiff had failed to show that the damages were caused by the negligence of the defendant. This contention is not only on the alleged ground that it did appear that the latter was in fact chargeable with negligence as the cause of the loss, but that the burden was with the defendant to relieve himself from the imputation of want and care.
After a careful examination of the evidence we are satisfied that the question whether the loss was attributable to his negligence *506 was one of fact to be determined by the referee upon evidence somewhat conflicting, and that his conclusion in that respect is not here the subject of review.
The action was founded upon the charge of negligence of the defendant, and the burden was with the plaintiff to establish it. (Lamb v. Camden,etc., R.R. T. Co.,
As a general rule, when a bailee fails on demand to deliver to the bailor property to which the latter is entitled, the presumption of liability arises, and if the goods cannot be found it furnishes the imputation of negligence as the cause. (Fairfax v. N.Y.C., etc., R.R.Co.,
In the present case the plaintiff alleged in his complaint, and it appeared, that the loss resulted from the destruction of the factory by fire. From that fact alone no presumption arose to furnish a prima facie
case against the defendant. But upon the main issue, whether it was attributable to the negligence of the defendant, the burden was with the plaintiff. (Whitworth v. Erie Ry. Co.,
It is also urged that the defendant, having undertaken to manufacture the butter and cheese from the milk furnished *507 him at the factory by the plaintiff and his assignors, market the product and pay to them the proceeds, is liable for breach of his contract irrespective of the question of negligence. This proposition, in view of the issue made by the pleadings, cannot now, for the predication of error, be treated as in the case, although to sustain a judgment issues may be deemed so broadened as to conform the pleadings to the facts proved when it can be done without violation of any rule of law. But upon the basis of an alleged breach of contract the plaintiff's action would not be supported upon the evidence and facts as found by the referee.
It is true that where an absolute executory contract is made, the contractor is not excused by inability to execute it caused by unforeseen accident or misfortune, but must perform or pay damages unless he has protected himself against such contingency by stipulation in the contract. (Harmony v. Bingham,
By the contract now under consideration, the cheese and butter were to be manufactured at this factory and to be made from the milk furnished by the patrons, of whom the plaintiff *508 and his assignors were members. The existence of that particular factory was terminated by its destruction and the loss with it of the manufactured product and of the milk then remaining there unconverted into cheese and butter, rendered it impossible for the defendant to further proceed with the performance of his contract in respect to those articles of material and product. And as the nature of the agreement was such that it must be deemed to have been contemplated by the parties to it, that the articles to be manufactured should be made only from the materials furnished by the patrons and at the factory referred to, there was necessarily an implied condition so qualifying the defendant's undertaking, as to relieve him from performance rendered impossible without his fault, and from the consequences of his inability thus occasioned to fulfill his contract in respect to the subject of the bailment which was destroyed by the fire.
There was no error to the prejudice of the plaintiff in any of the rulings of the referee to which exceptions were taken in the reception or rejection of evidence.
These views lead to the conclusion that the judgment should be affirmed.
All concur, except FOLLETT, Ch. J., not sitting.
Judgment affirmed.