The defendant in this case did not admit that the oral contract was as testified to by the agent of the plaintiff. The case was therefore properly submitted to the jury. Thruston v. Thornton, 1 Cush. 89. Camerlin v. Palmer Co. 10 Allen, 539. Winchester v. Howard, 97 Mass. 303. Gassett v. Glazier, 165 Mass. 473.
The charge of the judge was sufficiently favorable to the defendant in instructing the jury that they were entitled to consider not only what was said or written, but what was done by the parties in pursuance of the talk and letters, and to determine whether the agents of the plaintiff and the defendant understood the terms of the bailment as claimed by the plaintiff; and that, unless they so found, their answer to the first question should be “ No.” Saunders v. Clark, 106 Mass. 331. Proctor v. Old Colony Railroad, 154 Mass. 251.
The bill of exceptions states that the defendant knew the character of the goods received; that it knew that if the weather was unusually cold they would be likely to freeze in that portion of the defendant’s building where they were stored; that no agent or servant notified the plaintiff of this probability, and never said anything to the plaintiff in regard to the temperature or freezing until in March, 1904. Stewart, the manager of the plaintiff company, testified that upon discovering the damage he called Brown’s attention to the fact that in the original conversation over the telephone the defendant accepted the goods after being notified that they must be kept in a suitable temperature, and that Brown, the defendant’s treasurer, did not admit or deny such an arrangement. Brown in his testimony as to the telephone conversation said that he .did not recollect Stewart’s saying anything about temperature or freezing, but he would not deny absolutely that anything of the kind was said. *85The plaintiff’s witnesses also testified that the defendant did not give any notification of the freezing, and that it was discovered by the plaintiff some time after it occurred.
The first request for instructions was properly refused.
The remaining exception relates to the exclusion of evidence relating to the alleged acts and declarations of one Mitchell. The defendant offered to show that Mitchell had inspected the goods from time to time, had expressed approval of the place where they were stored, and had on one occasion expressly approved of the storing of a portion of the same goods in a room adjoining the one where the goods were stored, and of exactly similar character. On the question of the admissibility of the evidence there was testimony that Mitchell was the bookkeeper of the plaintiff, and, under authority of the manager of the plaintiff, had attended to the transfers of the goods from the warehouse where they previously had been to the defendant’s warehouse.
If the contract was as the plaintiff contended, we find no evidence in the offer of proof to show any authority on the part of Mitchell to change the contract or to waive it. The evidence therefore was rightly excluded. Baker v. Gerrish, 14 Allen, 201. Stollenwerck v. Thacher, 115 Mass. 224. Rowe v. Canney, 139 Mass. 41. Gilmore v. Mittineague Paper Co. 169 Mass. 471, 476.
Exceptions overruled.