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transfer of title | plaintiffs in defendant's warehouse, which resulted in verdicts for plaintiffs. Overruled.

injury to property. 5. One who has sold and received payment for goods deposited in a warehouse and identified so that the title has passed cannot hold the warehouseman liable for negligently permitting the property to be injured.

E

(February 27, 1915.)

XCEPTIONS by plaintiffs and defendant to rulings of the Superior Court for Suffolk County made during the trial of actions brought to recover damages for injury by salt water to wool stored by

Transp. Co. v. Story, 50 Md. 4, 33 Am. Rep. 293.

But when a warehouseman uses ordinary care to anticipate danger to goods stored with him, or to prevent damage to them after the danger becomes apparent, he will not be held liable.

Thus, while warehousemen are not bound to keep on hand special facilities to meet and overcome possible, but unexpected and unprecedented, ́emergencies, which are included in what we called the act of God, such as an unprecedented flood, they are required, if imminent danger presents itself, to use such appliances and means as the ordinary safe conduct of their business requires them to possess, and such as are at hand, and to use them with promptness such as would be expected of ordinarily careful and prudent men in regard to their own property or property intrusted to their care under like circumstances. And if, after reasonable information of danger, the warehousemen promptly commenced the removal of seed from the first to the second floor, and did so as rapidly as reasonably could be done under the circumstances, and the flood came suddenly before all could be so removed, they would not be guilty of negligence as to that part not removed. Backus v. Start, 13 Fed. 69.

So, an unprecedented high stage of water in the Mississippi river, which caused the ground upon which defendant's warehouse was built to soften, permitting the foundation to sink and letting plaintiff's malt which was stored in the warehouse into the water in the basement, so that some of it was destroyed and the remainder damaged, was an act of God, and defendant could not be held to respond for the value of the malt received by it unless it appeared from the evidence that defendant was guilty of negligence directly contributing to the loss or damage; and where, although it knew that water was accumulating in the cellar, it had no reason to expect the collapse of the building until it was too late to remove the goods, it was held that it was not liable. American Brewing Asso. v. Talbert, 141 Mo. 674, 64 Am. St. Rep. 538, 42 S. W. 679.

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The facts are stated in the opinion. Messrs. David A. Ellis and S. M. Whalen, for plaintiffs:

The tide was not an "act of God," as a matter of law, on the facts which the jury might find in the plaintiffs' favor.

Poole v.

Boston & M. R. Co. 216 Mass. 12, 102 N. E. 918; Ayers v. Ratshesky, 213 Mass. 589, 101 N. E. 78; Bourne v. Whitman, 209 Mass. 155, 35 L.R.A. (N.S.) 701, 95 N. E. 404, 2 N. C. C. A. 318.

that defendants were not liable for the damage, where it appeared that their storehouse and wharf were as high as any others; that the water had never before risen so high as upon the occason of the loss; that had the salt been placed in the storehouse instead on the wharf, the damage would have been about the same, and that the rise was so sudden that it did not appear that the salt could have been saved. Knapp v. Curtis, 9 Wend. 60.

And where, because of an unprecedented rainfall and the condition of the street, the ordinary sewers were unable to carry away the water, and it flowed across the sidewalk and into defendant's basement damaging plaintiff's trunk which was stored there, it was held that defendant was not bound to foresee this chain of circumstances, and would be liable only if he failed to take reasonable care to protect the trunk after it became evident that the rainfall could not be carried away in the usual channels; and where he commenced to remove the trunks which were stored in the basement as soon as the danger became apparent, but plaintiff's trunk was damaged before all the trunks could be removed, defendant could not be held liable for negligence because he failed to provide in advance means by which they could be removed more quickly. Murray v. Hayes, 151 N. Y. Supp. 1.

In Powers v. Mitchell, 3 Hill, 545, where plaintiff's goods were destroyed while in defendant's warehouse by a sudden freshet which caused the water of the river to rise and flow into the room where they were deposited, it was held that defendant was not liable for their loss, inasmuch as every exertion was made by men in his employ to save them from the water, although the fact that the goods were totally destroyed by the water was held not to relieve the warehouseman from liability for damage to the goods prior the the flood by his negligently permitting oil to drip on them.

In connection with the defense of act of God considered in some of the cases above cited, the reader may profitably consult the Index to L.R.A. Notes, under the titles "Aet of God" and "Carriers," § 111. And see especially note in 29 L.R.A. (N.S.) 671, as

R. L. S.

Likewise, where salt stored on defendants' wharf was damaged by water due to a rise to duty of carrier where act of God has ocof the water at that point because of a vio-curred or is threatened. lent windstorm on Lake Erie, it was held |

In judging whether a person has or has | L. J. C. P. N. S. 161, 11 Reports, 517, not exercised due care, the law sets em- 72 L. T. N. S. 785, 44 Week. Rep. 157; phasis "especially" upon "the degree of care Brown v. Hitchcock, 28 Vt. 452. which other persons engaged in similar business in the vicinity were in the habit | Snow, & Saltonstall, for defendant: of bestowing on property similarly situated."

Cass v. Boston & L. R. Co. 14 Allen, 448; Maynard v. Buck, 100 Mass. 40, 1 Am. Neg. Cas. 901; Canadian Northern R. Co. v. Senske, 120 C. C. A. 65, 201 Fed. 637; Chicago G. W. R. Co. v. Minneapolis, St. P. & S. Ste. M. R. Co. 100 C. C. A. 41, 176 Fed. 237, 20 Ann. Cas. 1200; 26 Harvard L. Rev. 760, note.

When a high tide occurs, under the operation of natural and well-comprehended laws, it seems as if that should be a distinct precedent.

Nitro-Phosphate & O. Chemical Manure Co. v. London & St. K. Docks Co. L. R. 9 Ch. Div. 503, 39 L. T. N. S. 433, 27 Week. Rep. 267, 1 Eng. Rul. Cas. 276; Pittsburg, Ft. W. & C. R. Co. v. Gilleland, 56 Pa. 445, 94 Am. Dec. 98; Cowles v. Pointer, 26 Miss. 253; Great Western R. Co. v. Braid, 1 Moore P. C. C. N. S. 101; Brabant v. King [1895] A. C. 632, 64 L. J. C. P. N. S. 161, 11 Reports, 517, 72 L. T. N. S. 785, 44 Week. Rep. 157; Carney v. Caraquet R. Co. 29 N. B. 425.

Even if the top of the tide was an "act of God," the defendant was not entitled to a verdict.

Nitro-Phosphate & O. Chemical Manure Co. v. London & St. K. Docks Co. L. R. 9 Ch. Div. 503, 39 L. T. N. S. 433, 27 Week. Rep. 267, 1 Eng. Rul. Cas. 276; Burt v. Victoria Graving Dock Co. 47 L. T. N. S. 378; Slater v. Mersereau, 64 N. Y. 138; Smith v. Faxon, 156 Mass. 589, 31 N. E. 687; Stone v. Dickinson, 5 Allen, 29, 81 Am. Dec. 727; Boston & A. R. Co. v. Shanly, 107 Mass. 568; Corey v. Havener, 182 Mass. 250, 65 N. E. 69, 13 Am. Neg. Rep. 108; Oulighan v. Butler, 189 Mass. 287, 75 N. E. 726; Flynn v. Butler, 189 Mass. 377, 75 N. E. 730; Feneff v. Boston & M. R. Co. 196 Mass. 575, 82 N. E. 705; Lantin v. Goodnow, 207 Mass. 291, 93 N. E. 843.

Plaintiffs' knowledge and acquiescence, as such, are immaterial; there must be a contract, express or implied, to modify or waive the legal incidents of the contract of bailment, and knowledge accompanied by long acquiescence without objection might be evidence of such an agreement, but only if the knowledge was a full one of all material facts and circumstances in relation to the situation.

Conway Bank v. American Exp. Co. 8 Allen, 512; Mooers v. Larry, 15 Gray, 451; Brabant v. King [1895] A. C. 632, 64

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Mr. Thomas Hunt, with Messrs. Gaston,

The only obligation of the defendant was to exercise ordinary care with reference to the wool.

Murray v. International S. S. Co. 170 Mass. 166, 64 Am. St. Rep. 290, 48 N. E. 1093; Willett v. Rich, 142 Mass. 356, 56 Am. Rep. 684, 7 N. E. 776; Sullivan v. Scripture, 3 Allen, 564; Maynard v. Buck, 100 Mass. 40, 1 Am. Neg. Cas. 901; Keith v. Worcester & B. Valley Street R. Co. 196 Mass. 478, 14 L.R.A. (N.S.) 648, 82 N. E. 680.

There was no evidence here to warrant a finding that a failure to store at a height greater than 15.60 feet above "Boston city base" was a failure to exercise ordinary care.

Fair v. Manhattan Ins. Co. 112 Mass. 320; Emerson v. Patch, 129 Mass. 299; Newell v. Chesley, 122 Mass. 525; Peru Steel & I. Co. v. Whipple File & Steel Mfg. Co. 109 Mass. 464; Blackington v. Johnson, 126 Mass. 21; Hamilton v. Boston Port & Seamen's Aid Soc. 126 Mass. 407; Livingston v. Hammond, 162 Mass. 375, 38 N. E. 968; Wirth v. Kuehn, 191 Mass. 51, 77 N. E. 647.

The facts do not warrant a finding of negligence on the part of the defendant.

Blyth v. Birmingham Waterworks Co. 11 Exch. 781, 25 L. J. Exch. N. S. 212, 2 Jur. N. S. 333, 4 Week. Rep. 294, 18 Eng. Rul. Cas. 621; Pearce v. The Thomas Newton, 41 Fed. 106; Cowles v. Pointer, 26 Miss. 253; Nitro-Phosphate & O. Chemical Manure Co. v. London & St. K. Docks Co. L. R. 9 Ch. Div. 503, 39 L. T. N. S. 433, 27 Week. Rep. 267, 1 Eng. Rul. Cas. 276; Pittsburg, Ft. W. & C. R. Co. v. Gilleland, 56 Pa. 445, 94 Am. Dec. 98; Siegfried v. South Bethlehem, 27 Pa. Super. Ct. Rep. 456; People v. Utica Cement Co. 22 Ill. App. 159; Garfield v. Toronto, 22 Ont. App. Rep. 128; Palmyra v. Waverly Woolen Co. 99 Me. 134, 58 Atl. 674; Cormack v. New York, N. H. & H. R. Co. 196 N. Y. 442, 24 L.R.A. (N.S.) 1209, 90 N. E. 56, 17 Ann. Cas. 949; Jones v. Minneapolis & St. L. R. Co. 91 Minn. 229, 103 Am. St. Rep. 507, 97 N. W. 893, 15 Am. Neg. Rep. 355.

If the plaintiffs did, with as much knowledge as the defendant had, in fact consent to the wool being stored just where it was stored, they would not be entitled to recover.

Searle v. Laverick, L. R. 9 Q. B. 122, 43 L. J. Q. B. N. S. 43, 30 L. T. N. S. 89, 22 Week. Rep. 367; Knowles v. Atlantic & St. L. R. Co. 38 Me. 55, 61 Am. Dec. 234;

Brown v. Hitchcock, 28 Vt. 452; Parker v. Union Ice & Salt Co. 59 Kan. 626, 68 Am. St. Rep. 383, 54 Pac. 672.

Certain of the bags of wool stored by the plaintiffs had been sold by them before December 26, 1909, so that they had no title to these particular bags of wool at the time they were injured, sustained no damage with respect to them, and cannot therefore recover.

nature quite beyond the power of man to control. Human agency does not in any degree enter into their creation, their flood or their reflux. In this sense tides always are the act of God, for which man is not responsible. When damages are sought at law in such connection, the test of liability of a defendant upon whom a duty is cast, is whether the injury caused by the tide is an inevitable accident due wholly to the violence of the natural phenomenon, and not referable in any degree to the partici| pation of man by unreasonable failure to anticipate danger, to put forth appropriate preventive measures or protective instrumentalities, or to employ rational means to ward off the probable consequences of the event. The human element enters into damages resulting from a cause like a high tide only in omission seasonably to be vigilant to avert the disaster or to mitigate its consequences by the use of such

Congar v. Galena & C. U. R. Co. 17 Wis. 477; Evans v. Marlett, 1 Ld. Raym. 271; Dutton v. Solomonson, 3 Bos. & P. 582, 7 Revised Rep. 883; Harrison v. Hixson, 4 Blackf. 226; Brown v. Hodgson, 2 Campb. 37, 4 Taunt. 189; Krulder v. Ellison, 47 N. Y. 36, 7 Am. Rep. 402; Thompson v. Fargo, 49 N. Y. 188, 10 Am. Rep. 342; Snee v. Prescott, 1 Atk. 245; Merchants' Despatch Co. v. Smith, 76 Ill. 542; United States Mail Line Co. v. Carrollton Furniture Mfg. Co. 101 Ky. 658, 42 S. W. 342; Potter v. Lansing, 1 Johns. 215, 3 Am. Dec. | expedients and safeguards as reasonably 310; Louisville & N. R. Co. v. Allgood, 113 Ala. 163, 20 So. 986; Dawes v. Peck, 8 T. R. 330, 3 Esp. 12, 4 Revised Rep. 675; Blum v. Caddo, 1 Woods, 64, Fed. Cas. No. 1,573; King v. Meredith, 2 Campb. 639.

Messrs. F. W. Bacon and O. T. Russell also for defendant.

Rugg, Ch. J., delivered the opinion of the court:

These are actions of contract wherein the plaintiffs seek to recover damages caused by the wetting with salt water of wool severally stored by them with the defendant, a warehouseman on the water front in Boston. The direct means of the injury was the tide of December 26, 1909, which rose to such height as to come into the sheds of the defendant, where the wool of the plaintiffs was stored, to a depth of several inches.

No question now is made as to the fact of damage. The main contention of the defendant is that this tide was of such extraordinary character as to amount to an "act of God" within the meaning of that phrase in the law. In its juridical sense an act of God may be defined as the action of an irresistible physical force not attributable in any degree to the conduct of man, and not in reason preventable by human foresight, strength, or care. Perhaps no definition could be framed in terms comprehensive enough to include every state of facts, but this is sufficient for the present cases. See The Majestic, 166 U. S. 375, 386, 41 L. ed. 1039, 1043, 17 Sup. Ct. Rep. 597, 2 Am. Neg. Rep. 282, and 1 Corpus Juris. 1172 et seq., for other definitions. Tides are manifestations of the forces of

might be expected under all the circumstances. Through failure in this respect man may concur as a contributing proximate cause with the forces of nature. But the use of the means to which prudent and careful persons in the same line of business ordinarily have recourse is all that can be required. If, having done this, a defendant is overpowered by storm or tide or flood, he is free from liability. The highest ingenuity of the intellect is not demanded. Nothing more can be exacted than such wisdom and provision as the ordinary man would have manifested to avoid a hazard or forestall a danger of which some warning actually had been given by previous experience, or fairly would be disclosed by the application of sound judgment to an observation of general climatic conditions, prevailing customs, and all available sources of information naturally to be resorted to by a reasonable man. Nugent v. Smith, L. R. 1 C. P. Div. 423, 438, 45 L. J. C. P. N. S. 697, 34 L. T. N. S. 827, 24 Week. Rep. 237, 3 Asp. Mar. L. Cas. 198, 1 Eng. Rul. Cas. 216; Nichols v. Marsland, L. R. 2 Exch. Div. 1, 46 L. J. Exch. N. S. 174, 35 L. T. N. S. 725, 25 Week. Rep. 173, 1 Eng. Rul. Cas. 262; Gray v. Harris, 107 Mass. 492, 9 Am. Rep. 61; Cork v. Blossom, 162 Mass. 330, 332, 26 L.R.A. 256, 44 Am. St. Rep. 362, 38 N. E. 495.

The precise point to be determined in the cases at bar is whether this particular tide was of such extraordinary height that the resulting mischief would not have been guarded against by the prudence, foresight, care, and skill reasonably to have been expected of the defendant in the performance. of its duty as warehouseman.

The determination must rest upon a height reached by it was 15.6 feet above consideration of all the facts which the de- the arbitrary level in common use in the fendant within reason might have been neighborhood, known as Boston base, which required to know in the careful conduct of was about .64 feet below mean low tide. its business before this particular tide. It This height had been exceeded slightly by cannot be held to the exercise of a degree the tide of 1851, which destroyed Minot's of sagacity which a reasonable warehouse- Ledge Lighthouse. There were also tides man using due caution for the preservation higher than 15 feet in 1830 and in 1847, of goods at the present time deposited with and on seventeen other occasions from 1850 him, in the light of the experience gained to 1905 the tide had risen to 14 feet or from that tide, now would put forth, but more. The tide in question was 3.86 feet would not have thought of practising be- above its predicted height. This was at fore that event. The legal obligation of tributed to an accompanying severe storm, the defendant was to use the ordinary care low barometer, and a northeast wind of of the man of common prudence in keeping great velocity. None of these three facthe kind of goods deposited with it, in view tors was excessive, and not infrequently of the facts accessible to and likely to be had been equaled. Within the twelve considered and acted upon by a reasonable previous years the tide on four different person before the event complained of. Wil- occasions had risen 3 feet or more above lett v. Rich, 142 Mass. 356, 56 Am. Rep. its predicted height, and one tide had 684, 7 N. E. 776; Maynard v. Buck, 100 exceeded its prediction by 4.1 feet, surMass. 40, 47, 1 Am. Neg. Cas. 901; Murray passing in this respect the tide in question v. International S. S. Co. 170 Mass. 166, 64 by almost 2 inches. An increment of this Am. St. Rep. 290, 48 N. E. 1093. This is magnitude on the normal or predicted the same rule put in equivalent words as height of tides appreciably lower than that a requirement to exercise the care of "a of the one here in question would have reasonably careful owner of similar goods" brought the water to the level. in the management of his own concerns, and an exoneration from liability for "loss or injury to the goods which could not have been avoided by the exercise of such care." The warehouse receipt act, pt. 2, § 22 (Stat. 1907, chap. 582); Sullivan v. Scripture, 3 Allen, 564, 565; Maynard v. Buck, 100 Mass. 40, 47, 1 Am. Neg. Cas. 901. Stated broadly, the principles of law respecting liability for damages arising from high tides are no different from those which govern liability flowing from different natural phenomena and the manifold other conditions constantly presented in everyday affairs. The test is whether the due care of the reasonable man under all the circumstances has been exercised.

The facts in the cases at bar must be examined to determine whether as matter of law it could have been found that the defendant failed in the performance of this duty.

There was an auditor's finding in favor of the plaintiffs. Unless the facts stated in the report were not sufficient to support the conclusion, or were so inconsistent in themselves as to neutralize each other, or were overcome by other evidence, that was evidence sufficient to warrant a verdict by the jury in favor of the plaintiffs. Fair v. Manhattan Ins. Co. 112 Mass. 320, 331; Newell v. Chesley, 122 Mass. 525; Fisher v. Doe, 204 Mass. 34, 90 N. E. 592. The elemental facts were not very much in dispute and might have been found to be as follows: This tide was described by witnesses as extraordinarily high. The

A severe storm, known as the Portland storm because a steamer of that name was lost, occurred in 1898. Its accompanying tide rose to a height of 14.94 feet, and water then entered two of the three sheds of the defendant which were wet by the 1909 tide. The floors of those sheds were raised thereafter, but subsequently settled so that, although some parts were higher, there were places in each of the sheds as low as 14.10 feet, 14.24 feet, and 14.40 feet above Boston base, on December 26, 1909. These levels were lower than the recorded heights of several other tides.

The records of tide heights about Boston harbor, including those above mentioned, were available at the city engineer's office, and had been published in his reports for a number of years, and reference had been made to them in other public records. There were several civil engineers in Boston who had made special study of the subject of tides, and were prepared to and did advise numerous persons as to the elevation of structures in order to be secure from damage by tides.

Considerable testimony was introduced from experts on tides to the effect that the minimum height for storage of wool, in the light of experience and knowledge available before the date in question, was 15.6 feet above Boston base. The practice of others engaged in the same business as to the elevation of storerooms was evidence com petent to be considered as bearing upon the negligence of the defendant. Case v. Bos ton & L. R. Co. 14 Allen, 448; Pitcher v.

human diligence and sagacity were powerless in reason to avert the consequences of the operation of snow or storm or cold. But they are distinguishable from the cases at bar.

Old Colony Street R. Co. 196 Mass. 69, | Rep. 507, 97 N. W. 893, 15 Am. Neg. Rep. 13 L.R.A. (N.S.) 481, 124 Am. St. Rep. 513, 355, and like cases, are instances where 81 N. E. 876, 12 Ann. Cas. 886; McCrea v. Beverly Gas & Electric Co. 216 Mass. 495, 498, 104 N. E. 365; Canadian Northern R. Co. v. Senske, 120 C. C. A. 65, 72, 201 Fed. 637. Some evidence of this sort showed elevations higher than that maintained by the defendant in its sheds where the plaintiffs' wool was stored.

It is apparent from what has been said that the plaintiffs' cases did not rest upon the bald fact that the tide which caused the damage was the highest for nearly sixty years. There were many other circumstances bearing upon the issue. The subject of high tides was one to which the attention both of experts and of the public had been directed to a greater or less extent. The partial flooding of the defendant's own premises in 1898 had called its notice pointedly to the dangers incident to high tides. Reasonable caution might have been found to require not only bare avoidance of known precedents, but a slight factor of safety in the presence of such powerful forces as tides. The defendant was conducting its business not in a new and untried country, where there must be something of the unknown even in the recent past, but in one of the oldest and most highly commercialized cities of the continent, where records appear to have been kept for a long period with considerable accuracy and studied with care, so that the teachings of experience might have been found to have been available to the ordinarily prudent business man, even though himself lacking in exact knowledge. The state of society, the customs of others, and the limits of reasonable expense sometimes may be decisive elements in exonerating a defendant from liability for damages resulting from unusual, though not unprecedented, storm or freshet, cold or flood. On these grounds perhaps Cowles v. Pointer, 26 Miss. 253, and Pearce v. The Thomas Newton (D. C.) 41 Fed. 106, may be distinguished. The defendant's business was not of a nature to render impracticable the avoidance of damages from the tides. All that appears to have been required was the elevation of the floor level of its sheds or some degree of waterproofing. The improbability of the occurrence of the event is not the sole consideration, but the feasibility of preventing injurious results flowing from it often is a potent factor in determining whether there is liability. Cormack v. New York, N. H. & H. R. Co. 196 N. Y. 442, 24 L.R.A. (N.S.) 1209, 90 N. E. 56, 17 Ann. Cas. 949; Jones v. Minneapolis & St. L. R. Co. 91 Minn. 229, 103 Am. St.'

There was much evidence coming both from the testimony of witnesses and from the fair inferences from other facts which tended to exonerate the defendant from negligence. But we are of opinion on the whole that its weight was for the jury, and that it could not have been ruled as matter of law that there was nothing upon which to rest a finding of negligence on the part of the defendant. The cases are very close on their facts. Verdicts in favor of the defendant certainly would have been warranted. But the jury hardly could have been directed that there was no evidence of negligence worthy of consideration. This conclusion is supported by Nitro-Phosphate & O. Chemical Manure Co. v. London & St. K. Docks Co. L. R. 9 Ch. Div. 503, 39 L. T. N. S. 433, 27 Week. Rep. 267, 1 Eng. Rul. Cas. 276; Carney v. Caraquet R. Co. 29 N. B. 425; and Burt v. Victoria Graving Dock Co. 47 L. T. N. S. 378; Gulf Red Cedar Co. v. Walker, 132 Ala. 553, 31 So. 374, 11 Am. Neg. Rep. 179. See also Gleeson v. Virginia Midland R. Co. 140 U. S. 435, 35 L. ed. 458, 11 Sup. Ct. Rep. 859; Howe v. Ashland Lumber Co. 110 Me. 14, 85 Atl. 160; Kansas City v. King, 65 Kan. 64, 68 Pac. 1093; Ohio & M. R. Co. v. Ramey, 139 Ill. 9, 32 Am. St. Rep. 176, 28 N. E. 1087; Chicago, P. & St. L. R. Co. v. Reuter, 223 Ill. 387, 79 N. E. 166; State v. Ousatonic Water Co. 51 Conn. 137; Willson v. Boise City, 20 Idaho, 133, 36 L.R.A. (N.S.) 1158, 117 Pac. 115, 1 N. C. C. A. 203; New Brunswick S. B. & Canal Transp. Co. v. Tiers, 24 N. J. L. 697, 714, 64 Am. Dec. 394; Gulf, C. & S. F. R. Co. v. Pomeroy, 67 Tex. 498, 501, 3 S. W. 722; Atkinson v. Chesapeake & O. R. Co. 74 W. Va. 5, 82 S. E. 502; Kuhnis v. Lewis River Boom & Logging Co. 51 Wash. 196, 98 Pac. 655. Reliance is placed by the defendant on The C. H. Northam (D. C.) 181 Fed. 986. That, however, was a finding as matter of fact by a district judge upon the evidence before him, and does not rest upon any principle of law at variance with the conclusion here reached.

The defendant presented several requests for instructions in different forms, to the effect that if the plaintiffs knew where their wool was being stored, and continued for a series of years without objection to deposit with the defendant, they consented to the particular place of storage and assumed

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