Keller v. Smith

Minnesota Supreme Court
Keller v. Smith, 59 Minn. 203 (Minn. 1894)
60 N.W. 1102; 1894 Minn. LEXIS 140
Account, Buck, Gilfillan, Sickness, Took

Keller v. Smith

Opinion of the Court

Buck, J.

This action is brought to recover the value of certain household furniture which plaintiff stored with the defendants, and he alleges that the defendants agreed to insure it for its full value, alleged to be the sum of $666, and the verdict of the jury was in favor of plaintiff for $450. The defendants deny that they agreed to insure the goods. They were destroyed by fire while in the defendants’ possession. The defendants were engaged in business as furniture and carpet dealers, and in their answer they “admit that on or about the first day of Decembér, 1890, these defendants, for and in consideration of certain storage charges to be paid, received for storage from the plaintiff the goods, wares, and merchandise described in the complaint, and admit that thereafter, and on or about the 26th day of January, 1892, the plaintiff paid the defendant the sum of thirteen dollars for storage of said merchandise, the same being in full for storage to that date.” The defendants further allege in their answer “that, at the request 'of the plaintiff, these defendants on or about the 26th day of January, 1892, being then in possession of the personal property described in the complaint, and for his convenience, retained the possession of said personal property, without charge for storage thereon, and as gratuitous bailees, and allege that thereafter, and while so rightfully in possession of said personal property, and on or about the 25th day of April, 1892, the same were, without fault of these defendants, totally destroyed by fire.” Very much of the controversy *206arises over the last portion of the answer which we have quoted. The plaintiff claims, and so testified, thai about the 1st day of December, 1890, he bought some of the furniture described in the complaint, of defendants, on the installment plan, and made the final payment January 2G, 1892, and up to that time left the furniture with defendants in storage, but that no terms were made about insurance; but that he stated to Mr. Farwell, one of the defendants, that he supposed that he ought to insure the furniture; and that Farwell told him it was entirely unnecessary; that it was covered under his policy.

Plaintiff further testified that when he paid for the storage he made an agreement with defendant Farwell to continue the insurance; that he suggested that perhaps he, plaintiff, had better insure the goods, but that Farwell said that he would keep them insured; that the furniture was covered under his policies; that plaintiff was already insured, and that he would continue the insurance. He further testified that at the same time he informed Far-well that the time for removing the goods was indefinite, and that he did not want to pay storage charges for any length of time; but Farwell said to him: “If you move them in sixty days, we will not charge you insurance for that time, nor for storage, nor for anything except packing.” J. W. Owens, a witness for plaintiff, testified that he heard a conversation between plaintiff and Farwell in which plaintiff said, “Well, I guess the best thing I can do, not knowing when I want to ship this furniture, is to get it covered by a time policy”; and Mr. Farwell said, “Mr. Keller, it is not necessary for you to go to that expense at all, because my policy will cover these goods of yours”; and that “Mr. Farwell agreed with Mr. Keller to keep the goods for sixty days free of charge, in lieu of the $25 he was to pay him for packing the goods. That was settled upon then and there, that he was to pay him $25 for packing the goods, and in consideration of that he was to keep them sixty days for nothing. If they remained longer, Mr. Farwell was to pay storage, and it was to be paid when Keller got the goods.” There was considerable more evidence of the character which we have quoted. Very much of this was denied by the defendants. It was all submitted to the jury for its consideration, and the jury found a verdict for plaintiff, as we have stated, for $150. The furniture *207was burned about one month after the expiration of the sixty days.

It is claimed by the appellants that, even if there was such a contract for insurance as claimed by plaintiff, it was void for want of consideration. But we are of the opinion, talcing the whole transaction, that there was sufficient consideration for defendants’ promise to keep the furniture insured. If the goods remained longer than sixty days, the defendants were to charge for storage, and if they agreed to keep them insured, as part of that bargain, then there was a sufficient consideration which entered into the contract. The jury must necessarily have found that defendants agreed to keep the property insured, and whether it was intended by defendants that their general insurance policy should cover the furniture, or whether they would be entitled to charge plaintiff with the additional costs of insurance, is immaterial, so far as a consideration for the agreement is concerned. The agreement was for storage and insurance, made at the same time as part of an entire contract, and there is evidence to show that defendants were to charge plaintiff, and receive from him, storage for the furniture during the time it was left with them after the expiration of the sixty days.

As to the fifth and sixth assignments of errors, the matter referred to was largely in the discretion of the trial court, with which we do not feel disposed to interfere.

The order denying the motion for a new trial is affirmed.

Gilfillan, C. J., absent on account of sickness; took no part.

(Opinion published 60 N. W. 1102.)

Reference

Full Case Name
J. S. Keller v. J. McGill Smith
Cited By
1 case
Status
Published