*178On Rehearing.
Breaux, J.Application was made for a rehearing on a’number of grounds which we considered sufficient to reopen the case and hear further argument.
Plaintiffs contended that the loss resulting from the deterioration of peas was amply shown, and that our decree should be amended so as to allow them an amount equal to this loss. Secondly, that defendant had no right to hold possession of the property stored until all charges had been paid, for the reason that plaintiffs were always willing to pay storage on any goods which they would withdraw, and the twelve hundred and ninety and 59-100 dollars admitted by plaintiffs in their petition to be due was for storage on the goods already withdrawn; that an amount claimed of six hundred and six and 6-100 dollars, and heretofore allowed, was never earned. The charge was for preservation of goods, which had not been earned; that the price fixed in the decree for the peas was too low and that it should be increased to an amount equal to the value of sound peas at the time.
Defendant made no application for a rehearing, but in argument at bar, through its learned counsel, contended that all the issues should be reconsidered and the whole claim rejected.
There was much said by defendant’s counsel in argument which was persuasive, in view of the restricted liability stipulated in the contract of storage between plaintiffs and the defendant.
Heretofore it was considered that throughout the trial the burden of proof was with plaintiff, in view of this contract. None the less, after having considered the evidence, the court concluded that its weight wa3 with plaintiffs, and rendered its decree accordingly.
We are impressed by the argument of defendant’s counsel, made with force and clearness at bar, that our decision would perhaps prove somewhat of a hindrance to the cold storage industry. In consequence, as relates to storage, we are moved to go over the entire ground again..
The evidence, as heretofore considered, led us, we think, to a correct conclusion, although, the practical observation of witnesses who testified in this case did not entirely accord with entomological science. We point out the difference between the two. Our conclusion is that, in the main, the difference is not considerable. Practically, it was thought by the witnesses that the insects.by which the peas were destroyed-were a part of the pea, coming spontaneously from it, and growing with it, *179and. that when they a-each the perfect condition, they flew away, committing no lurtner damage.
We have lound, alter consulting several authorities, that entomology teaches that in the early spring the female weevil (Bruchus pish, the pea weevil of the naturalist) fastens its egg upon the newly formed pod of the pea in a way that renders it difficult, at first, to find that, the grain is attacked. The egg gives birth to a white larva which feeds on the substance of the pea, and takes its life from it. The fárinaceous substance of the grain is favorable to its growth, and it is while thus growing that the damage is done. When this larva passes into a perfect state, the weevil bores through the pods, and, as a destroyer, commits no further damage except in giving birth to eggs, which are inserted in the pea as before mentioned.
Cold storage will not destroy the weevil; it can only check its growth and development while in an embryo state. In winter the weevil finds shelter from the cold in the cracks of walls and other- secluded places. It does not increase. The cold destroys many. In. summer they invade the different cereals. They do not lay their eggs on the surface, but at some depth in the heaps of grain; a very minute dot on the surface of the pea being the only external evidence of the presence of a weevil larva.
We infer that in this case the presence of the weevil or of its larva and the extent of the damage escaped the attention -of the plaintiffs and the defendant. All agree that in cold air the weevil does not lay eggs and the larva is harmless. But it takes a temperature of, at least, ten degrees centigrade to check their increase. Here cold storage becomes useful, and is, when the peas have been properly stored, some protection against damage by weevil.
There are methods of destroying them that give rise to interesting study to the student of entomology. We are reminded by the necessity of some brevity -that, although the subject is interesting, we must not pursue its study any further, and that we must limit our discussion to the work the cold storage undertakes when it receives peas on storage', and this'we think we have done by indicating the degree of temperature required to cheek the growth of insects of the weevil kind.
Our decision found that the heaps of peas were too large, and that the defendant did not sufficiently look after the ventilation of the cold air it controls. After a re-examination, we are not satisfied that an error has been committed. Defendant places great reliance upon the *180receipt it gave for the peas and the limited liability clause printed therein. W e understand that the defendant can limit its liability,^ and that those who sign the limited clause will be bound by its terms. But in this case oversight and negligence have been found which are not covered by the limited liability clause of the receipt, and from which we do not understand from the testimony that it ever was the intention to relieve the defendant. Certainly, the language used leads to such inference. One may stipulate waiver as extensive as he pleases, proivded it does not contravene rules and laws enacted on grounds of public policy. The waiver must express the full extent intended.
We take up for decision each item separately.
An exhibit identified by the letter A is annexed to the plaintiffs’ petition and clearly shows that the coW-peas for which it accounts were sold from April 8th, 1898, to July _22nd, 1898, for four hundred and thirty-three and 19-100 dollars. This exhibit was offered in evidence contradictorily with defendant who permitted it to be filed without objection. We think we are warranted in considering it to be properly before the court, and that it and other evidence shows that plaintiff's are entitled to $689.28, on item represented by statement A. If sound, they would have brought, it appears, ninety cents per bushel — eleven Hundred and twenty-two 47-100 dollars. They sold for four hundred and thirty-three 19-100 dollars. The difference they would have brought if not weevily is six hundred and eighty-nine 28-100 dollars.
In seeking to fix the value of these peas (not weevily when delivered to storage company), our attention was arrested by the testimony of a witness of the defendant who said that he, in 1898, commenced selling peas at 90 cents. Mixed peas were sold for 75c per bushel; Whip-poor-will at 85c. Another witness spoke of 80c as having been the selling price. True, plaintiffs’ peas were of the better quality of clay peas and worth from 10c to 25e more than the other. Taking the minimum of value of the ordinary and mixed peas and the minimum additional for the clay peas, we fix the price at 90c a bushel. It must be remarked that these peas were carried over by plaintiff from the season of 1897 to be sold in 1898, when they were not as valuable, we infer from the testimony, as they were in 1897, and not as fresh as they were in the latter year.
The next ground of complaint is based on the refusal of the defendant to deliver the peas to plaintiffs before the storage was paid. Defendant held possession and claims for storage while it held possession.
*181Plaintiffs deny defendant’s right to recover for this storage because, as they aver, they offered to pay charges for storage which they assert defendant refused to accept.
Plaintiffs’ contention is that separate negotiable warehouse receipts had been issued by the defendant for the peas; that defendant could not in law refuse to deliver the peas called for by one of the receipts, upon the ground that the storage on other peas which had been withdrawn on other receipts had not been paid. In other words, that it was not an advance made on the deposit, nor a claim arising from the deposit of the particular goods stored which plaintiff wished to withdraw from storage. Plaintiffs say that they were willing to pay storage on the goods they desired to withdraw, but on none other, although, as wo understand, there were other charges due.
The Statute 156 of 1886 is clear enough that on the presentation of a warehouse receipt properly endorsed and the tender of charges upon the property represented by it, the holder of the receipt is entitled to the property it covers. While it is true that under the terms of this statute the holder, of the receipt is entitled to delivery of the property upon the tender of payment of all charges on the particular property for which the receipt calls, yet there must be a tender in order to enable the holder of the receipt to recover damages growing out of delay in not delivering the goods when delivery was timely and properly asked.
Here there was no tender made. There was an offer such as is usual in a business community during the course of business, as will be seen from the following whiqh is copied from the testimony:
Oross-JExaminati-on.
“Q. Did you tender them in cash the amount of money due on those peas?
“A. No, sir; not in cash.
“Q. Did you tender them anything ?
“A. No, sir.”
Clearly, this being the fact as relates to tender, plaintiffs continued to owe storage on the property which they did not offer to withdraw by making the tender the statute requires.
Plaintiffs claim the amount of six hundred and six and 6-100 dollars for storage on the damaged goods. The complaint on this score is that plaintiff was to pay four times the ordinary warehouse charges, and that, as defendant did not preserve the peas, it failed in performing its *182contract, and. is, in consequence, not entitled to anything; that it should not recover compensation for failing to do that which it had bound itself to do. The defendant did not succeed in preserving the property, it is true, but, at the same time, it does not appear to us that there was such culpable negligence as renders it necessary to hold that it has lost all right to anything for the services it did render, although it failed.
The property stored, although damaged, retained some -of its value; besides, defendant is condemned to pay its value, that is, to make up for the loss by paying the difference between sound and unsound peas. It should receive storage on the theory that if these peas had been sold in a sound state, defendant would have received storage.
Plaintiffs complain of the value of the peas as found by the court. The original opinion states, and this is not denied by plaintiffs, that it was at plaintiffs’ request that the peas were sold at public auction. The theory of the opinion was that plaintiffs had not complied with the statute cited supra with regard to tender, and that defendant was not alone at fault for the delays in disposing of the peas; that plaintiffs, also, had given them, at least, an implied assent by not energetically demanding delivery of the property and tendering the amount due thereon. We are not convinced that we should change that ruling and recall all that has been heretofore held in that regard.
We have not found any good reason to increase the number of bushels from fifteen hundred and seventy-eight to twenty-one hundred and eighty bushels. The court concluded, heretofore, to adhere to the minimum number. We would not feel justified in changing the number, unless it was manifest that an error had been committed.
We do not change and increase the amount heretofore allowed for the peas sold by the sheriff, particularly, for the reason that the following which appears of record would not warrant an increase:
“It is admitted that this receipt calling for 2,029 sacks of peas, on the reverse of which is written 730 sacks delivered to Mark and Rittner, 1,569 sacks to the sheriff, were stored in the warehouse as weevily peas on the date specified in the receipt.”
In view of this fact, we do not think that the price or the weight of the lot should be changed, for it may have been just as deficient in weight as compared with sound peas "on the day it was delivered to the storage as on the day it was sold.
*183To conclude, then, plaintiff is entitled to a judgment for six hundred and ninety-one 59-100 dollars ($691.59), as above stated, with 5 per cent, interest from this date, and to this extent the original judgment is amended, and in other respects it is affirmed, making, with the amount allowed in our original judgment, the sum of nine hundred and fifty-nine 85-100 dollars.
As amended, our original judgment is reinstated and made the judgment of the court.