[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 271
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 272
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 273 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 275 The defendant, being engaged in the keeping of a cold storage warehouse for the preservation of eggs and other perishable property, in the absence of an express contract, impliedly undertook to maintain the necessary temperature required for the preservation of such property as should be stored with it by its customers. The required temperature for the preservation of eggs is about thirty-eight degrees Fahrenheit. This was the temperature in the warehouse at the time the plaintiffs placed their eggs therein. This temperature was maintained until about the first of September, when by reason of the melting of the ice in the compartment in the storehouse the temperature rose until it reached at least fifty-two degrees prior to the 11th day of October, at which date all of the eggs were finally removed. The damages complained of resulted from this rise of the temperature in the storehouse and we think, under the findings of fact as made, the plaintiffs were entitled to recover damages.
The referee appears to have reached the conclusion that the defendant owed no duty to the plaintiffs to replenish the ice in the ice compartment or to maintain a lower degree of temperature than could be maintained by the ice stored at the time the eggs were placed in storage. And also that the defendant neglected the performance of no duty which it owed to the plaintiffs in the matter.
We think these conclusions are not warranted by the facts as found. The defendant had the care, custody and control of its warehouse and of the ice therein, and knew, or ought to have known, the amount of ice that remained in the compartment from time to time. If at any time the ice had become melted and so reduced in quantity that the necessary temperature *Page 276 for the preservation of the property could not be maintained the defendant should have supplied more ice, or if this was impracticable, should have given timely notice to the plaintiffs to remove their property before they had suffered damages by its deterioration. It is true that the plaintiffs, or one of them, inquired as to the quantity of ice on hand before placing their eggs in storage and were advised that the compartments were then full, but it does not appear that the plaintiffs knew of the melting or wasting of the ice to such an extent as to injure their property until about the middle of September, when they entered the warehouse and found that the temperature had risen far above that required and that their eggs had commenced to deteriorate. Whether the plaintiffs could after that time have removed and disposed of their eggs sooner than they did is not found nor is it important to here determine, for they had at that time already suffered some damages without knowing that the temperature had been permitted to rise above the point that was required for the preservation of their property.
The defendant contends that, under the allegations of the complaint, the defendant undertook to furnish cold storage only during the summer months, and that, having furnished the requisite temperature until the first of September, it was no longer liable. The referee, however, has found as facts that there was no express contract as to the length of time for which the eggs should remain in storage. We must, therefore, assume that it was a continuing contract until it was terminated by one of the parties, either by the removal of the eggs by the plaintiffs, or notice to do so by the defendant.
The judgment should be reversed, and a new trial ordered, with costs to abide the event.
PARKER, Ch. J., GRAY, O'BRIEN, BARTLETT and CULLEN, JJ., concur; WERNER, J., absent.
Judgment reversed, etc. *Page 277