sion that the juror was not biased or prejudiced against the defendant. The decision of such a question so presented to the trial court ought not to be disturbed on appeal without strong grounds for believing that there was an abuse of discretion. Judgment affirmed.

(25 Ind. App. 314)

HOLT ICE & COLD-STORAGE CO. v. ARTHUR JORDAN CO. 1 (Appellate Court of Indiana. May 29, 1900.) WAREHOUSEMEN - CONTRACT - PLEADING DAMAGES-NEGLIGENCE-BUR

DEN OF PROOF.

1. A complaint alleging that defendant was a warehouseman; that plaintiff was engaged in buying butter for future use; that defendant undertook and agreed with plaintiff, for a reasonable charge, to cause the butter to be kept in frozen storage in its rooms; that plaintff delivered to it butter to be so kept, and agreed to and did pay its charges therefor; that, in consideration of plaintiff's promise to pay said charges, it accepted and kept said butter in its frozen-storage rooms, and undertook to use ordinary skill, diligence, and care in the storage and preservation thereof; that it wholly failed to use due, ordinary, and reasonable care, skill, and diligence in the storage and preservation of said butter, by reason of which it was injured, -avers a contract to use skill and care in the storage and preservation of the butter, and a breach thereof, so that, the action being ex contractu, absence of contributory negligence need not be averred.

2. Where plaintiff contracted for storage of his butter in defendant's warehouse at a given rate per month, length of storage not being specified, but charges being paid to October 1st, and the bailment was ended only when the butter was taken out in September, the damage is to be determined by the market value at that time, though the parties knew of the injury before.

3. A prima facie case, putting the burden on defendant bailee, is made out by the plaintiff bailor showing that the bailee received the property in good condition, and returned it damaged.

Appeal from superior court, Marion county; Vinson Carter, Judge.

Action by the Arthur Jordan Company against the Holt Ice & Cold-Storage Company. Judgment for plaintiff. Defendant appeals. Affirmed.

Wilson & Townley, for appellant. Bride & Denny, for appellee.

Mc

ROBINSON, C. J. Appellee's complaint avers that appellant is a warehouseman maintaining storage rooms for storing butter and other articles of a perishable nature; that appellee was engaged in buying butter, which it wished to preserve for future use; "that said defendant undertook and agreed with plaintiff that, for a reasonable storage charge, it would cause said butter to be kept in frozen storage in its said rooms, and that thereafter, to wit, from time to time during the months of May, June, and July, of 1897, plaintiff did deliver to defendant large quantities of said butter,-in all, twenty-one thousand and seventy-two (21,072) pounds,-to be by defendant thus kept in frozen storage, Rehearing denied.

and agreed to pay to defendant its charges therefor, which said charges plaintiff there after paid; and that, in consideration of plaintiff's said promise to pay said charges, said defendant accepted and kept in its said frozen-storage rooms all of said butter, and undertook to use ordinary skill, diligence, and care in the storage and preservation thereof. Plaintiff further avers that said defendant wholly failed to use due, ordinary, and reasonable care, skill, and diligence in the storage and preservation of said butter, by reason of which it became and was impregnated with deleterious odors and flavors, which greatly diminished its value, to wit, in the sum of $5,000, all to plaintiff's damage in the sum of five thousand dollars ($5,000), for which sum plaintiff demands judgment." Appellant answered in general denial. Trial by jury, and verdict for appellee for $2,300. Appellant's motion for a new trial and in arrest were overruled. These rulings, and that the complaint does not state facts sufficient to constitute a cause of action, are assigned as error.

It is argued that the complaint is defective for failure to negative contributory negli gence. If the recovery demanded is sought to be predicated upon the breach of a contract, it was not necessary to aver the absence of contributory fault. It is insisted by appellant's counsel that the contract referred to in the complaint is purely as an inducement to what follows, and that the action is for damages arising out of a breach of duty imposed by law. Although the Code provides that there shall be but one form of action for the enforcement and protection of private rights and the redress of private wrongs, yet the courts have constantly kept in view the fundamental distinction between case and assumpsit. The distinction between actions ex delicto and actions ex contractu is as substantial and material under the Code as before its adoption. The Code may abolish the formal differences between such actions, yet the intrinsic and substantial differences remain as before. And, where a party's contract rights have been violated by the wrongful and tortious act of another, he may, as a general rule, sue for damages for the tort, or waive the tort and sue on contract. In such case, under the Code and at common law, the party has the two concurrent remedies. Where a pleader simply sets forth the facts of the transaction, it is often difficult to determine whether he has sued in tort, or waived the tort and sued on contract; but, in every case, whether the action is ex contractu or ex delicto must be determined from the facts which are averred as constituting the cause of action, not from averments which are neither issuable nor material. In 1 Chit. Pl. (16th Am. Ed.) 397, the author says that when the declaration "is founded on the obligation of law, unconnected with any contract between the parties, it is sufficient to state very concisely the circumstances which gave

rise to the defendant's particular duty or lia bility." At common law a declaration in assumpsit must disclose the contract, its consideration, whether the contract was express or implied, and its breach. It was necessary to show a promise, either by directly averring that the defendant "promised," or by other equivalent words. Avery v. Inhabitants of Tyringham, 3 Mass. 160; Sexton v. Holmes, 3 Munf. 566; Cooke v. Simms, 2 Call, 39.

Bac.

When pleadings were in Latin, the word "assumpsit" was always inserted in the declaration, as descriptive of the defendant's undertaking; and afterwards the word "undertook," though the promise be founded on a legal liability, and would be implied in evidence, was always considered proper to be inserted in the declaration. Abr. "Assumpsit," F; 1 Chit. Pl. (16th Am. Ed.) 152, 308, 397; 2 Chit. Pl. (16th Am. Ed.) 69, 144, 484; Booth v. Bank, 65 Barb. 457. For the difference at common law between the form of a declaration in assumpsit and one in case, see 2 Chit. Pl. (16th Am. Ed.) 60, 483. In Booth v. Bank, 65 Barb. 457, it is said: "When case and assumpsit were, at common law, concurrent remedies, the form of action that the pleader selected was determined by the insertion in or omission from the declaration of the allegation that the defendant undertook and promised. This right of selecting remedies, and whether the action is in tort or assumpsit, must be determined by the same criterion. If this is not so, the right of election is taken away. If taken away, which of the two is left? An action on contract cannot be joined with one in tort. How are we to determine whether the action is one on contract or in tort, unless the pleader by averment alleges the making of the contract, and demands damages for a breach, in the one case, or, by the omission of such an averment, makes it an action in tort? I know of no more certain or convenient criterion by which to determine the class to which a cause of action belongs than the one suggested. If some such rule is not established, the question of misjoinder will arise in every case in which at common law assumpsit and case were concurrent remedies." While an express promise, or words equivalent to the averment of an express promise, was absolutely necessary in a declaration in assumpsit, yet under the Code a promise need not be averred, if from the facts pleaded a promise would be implied by law. Wills v. Wills, 34 Ind. 106; Goble v. Dillon, 86 Ind. 327. In the case at bar the complaint shows an agreement under which appellant accepted for storage appellee's property, and for which appellee paid a consideration. The question is whether the complaint avers a promise, or facts implying a promise, to use diligence and care in the storage and preservation of the property. If there is such a promise, express or implied, it must be in the following: "And that, in consideration of plaintiff's said promise to pay said charges,

said defendant accepted and kept in its said frozen-storage rooms all of said butter, and undertook to use ordinary skill, diligence. and care in the storage and preservation thereof." The words quoted mean that, in consideration of plaintiff's promise to pay the charges, defendant accepted the butter, and undertook to use skill and care in its preservation and storage. The neuter verb "undertake" sometimes means agree,-promise. Soule, Syn.; Cent. Dict. And, taken with the context, it is here used in the sense of agreed or promised. The complaint means that appellant undertook to use skill and care in the storage and preservation of the butter in consideration of appellee's promise to pay the storage charges. A consideration is alleged, and it was for this consideration that appellant undertook to use skill and care. Taking the complaint as a whole, its averments show that the pleader relied upon the agreement, and that the action is on contract. See Staley v. Jameson, 46 Ind. 159, 15 Am. Rep. 285; Burns v. Barenfield, 84 Ind. 43; Lane v. Boicourt, 128 Ind. 420, 27 N. E. 1111; Greentree v. Rosenstock, 61 N. Y. 583; Austin v. Rawdon, 44 N. Y. 63. In De Hart v. Haun, 126 Ind. 278, 26 N. E. 61, the words used in the pleading could not be construed as a promise, for the reason that no consideration was alleged. In Boor v. Lowrey, 103 Ind. 468, 3 N. E. 151, the complaint averred that the plaintiff, having sustained a fracture, employed certain physicians, who undertook, for a certain reward, to treat the fracture; that they executed their undertaking negligently, in consequence of which plaintiff was injured. The court said: "It might well be said, within the holding in Goble v. Dillon, 86 Ind. 327, 44 Am. Rep. 308, that the action was brought in form ex delicto; but we choose to put it on the broader ground that regardless of the form in which the action is brought, since the injury for which a recovery is sought is an injury to the person, it cannot survive the death of the defendant." And when the same case was appealed a second time (Hess v. Lowrey, 122 Ind. 225, 23 N. E. 156, 7 L. R. A. 90) it was said: "If the action is, as doubtless it should be, regarded as a suit quasi ex contractu, for damages for an injury to the person, occasioned by the breach of a joint contract, the death of one of the defendants simply severed the joint liability, and extinguished the claim against the decedent, while it continued in full force as to the survivor." It must be noted, also, that the word "undertook" is used differently in the Boor-Lowrey Case from the case at bar. In the former the physicians simply undertook to perform the service. In the case at bar appellant, for a consideration, agreed to perform the services, and undertook to use care and skill. The same distinction is also to be noted in reference to the cases of Hoopingarner v. Levy, 77 Ind. 455, and Goble v. Dillon, 86 Ind. 327. In the case last mention

ed the court said: "It is not alleged by whom the appellees were called upon and requested, or by whom they were to be paid a reasonable compensation; and if the allegation that they undertook the same, etc., can be said to be an averment of a promise, it is not stated to whom the promise was made." These observations clearly indicate that the complaint in that case was materially different from the complaint in the case at bar. Having concluded that the complaint avers a contract to use skill and care in the storage and preservation of the property, the averment that appellant "wholly failed to use due, ordinary, and reasonable care, skill, and diligence in the storage and preservation of said butter, whereby it became" damaged, must be construed as an averment of the breach of the contract. The averments are that appellant contracted to do a certain thing, and that it failed to do it. The breach is pleaded as effectively as it would have been had the word itself been used. See Lane v. Boicourt, 128 Ind. 420, 27 N. E. 1111; Coon v. Vaughn, 64 Ind. 89. As the action stated in the complaint is ex contractu, an averment of the absence of contributory fault was unnecessary.

Complaint is made of the court's instruction concerning the measure of damages. That part of the instruction in question reads as follows: "If you find that the butter in controversy was in good condition when it was delivered to the defendant, and upon its return to the plaintiff it was found to be in a damaged condition, from any act or omission of the defendant, then plaintiff's measure of damages would be the difference between the market value of the said butter in the city of Indianapolis, at the time it was returned to the plaintiff, if it had been in good condition, and the market value at said time and place of said butter in its damaged condition. * * * If, however, you should find from the evidence that, at any time while said butter was stored in the defendant's warehouse, defendant ascertained that the said butter was being damaged, and that it was likely to suffer further damage by remaining in said warehouse, and that upon ascertaining such fact the defendant informed plaintiff thereof, and requested and notified plaintiff to remove said butter from said warehouse, and which the plaintiff neglected and refused to do within a reasonable time thereafter, then the measure of plaintiff's damage would be the difference between the market value of said butter in the city of Indianapolis at the time plaintiff received such notice, if in good condition, and the market value of the same butter at the same time and place in its damaged condition, unless at the time of receiving such notice the state of the weather was such, or that by reason of plaintiff's having no other place in which to store said butter, the injury to the same at any time prior to the time it was removed would have been greater 57 N.E.-37

in case it was then removed than it would be if it remained in defendant's warehouse, in which case the measure of damages would be as first above herein mentioned." It appeared that the butter was stored in a room opening on a hall, and that in other rooms opposite, and opening on the same hall, were stored oranges, lemons, and other fruits, the odors from which contaminated the butter. The butter (about 21,000 pounds) was placed in storage beginning the latter part of May, through June and July. About 4,000 pounds were taken out in June, July, and August, and the balance (about 17,000 pounds) September 25, 1897. The jury found as a fact, and there is evidence to that effect, that appellee first knew or learned that the butter, or some of it, was contaminated by a foreign odor, July 23, 1897. Appellant requested an instruction (which was refused) to the effect that the measure of damages would be the difference between the market value of cold-storage butter of the kind in controversy, and its market value in its damaged condition, at the actual time that the damage occurred; that, if damaged in July, it must be governed by the July price, and if it was injured in July or August, and appellee knew that fact, appellee could not, by keeping the butter in storage until a time when the market price was higher, thus enhance the damages recoverable. The evidence shows a contract of bailment. The storage charges were three-sixteenths of a cent per pound for the first month, and one-eighth of a cent per month for succeeding months. When entered into, no time was fixed by the parties when the bailment should end. The storage charges were paid by appellee and accepted by appellant for storage up to October 1st. The butter was taken out of storage September 25th. The paramount rule in assessing damages is that every person unjustly deprived of his rights should at least be fully compensated for the injury sustained. The question is as to the time when this compensation should be estimated. It is conceded that, had the contract of bailment called for a delivery back on September 25th, that date would be taken in estimating the damages, because fixed by the contract itself. It must be conceded, also, that this bailment did not end until the property was removed from storage by the bailor, and when it was removed the bailment ended. The liability of appellant as bailee ended at that time. The acts and conduct of the parties at that time show that they then agreed that the bailment should then end. The parties themselves at that time fixed the termination of the bailment, and it was as effective as if, when entered into, the date for its termination had been fixed. The contract made in May continued in force until September 25th, and was in force on that day. The contractual obligation assumed by appellant when it accepted the property was that it would exercise care

in its preservation, and that it would deliver it over to the bailor at the termination of the bailment. So far as concerned the care required of appellant during the bailment, it is immaterial whether the contract, when made, had a fixed or uncertain duration. The obligation to return the property in as good condition as when received, except it may have been injured without the bailee's fault, continued until the bailment should end. Without stopping to inquire in what manner appellant might have terminated the bailment, it did not terminate it, but voluntarily continued it in force until the property was removed by appellee. It must be conceded that appellant could perform its part of the contract only by delivering up the property in good condition when the bailment ended. Appellee, having complied with the contract, had the legal right to such performance, and default in that regard was a violation of that right. The measure of appellee's damages is whatever it will take to place him in as good condition as he would have been had the contract been fulfilled. The value should be fixed at the time when by appellant's fault the loss culminates. As is said in 1 Suth. Dam. (2d Ed.) $105, "The injured party ought to be put in the same condition, so far as money can do it, in which he would have been if the contract had been fulfilled or the tort had not been committed, or the loss had been instantly repaired when compensation was due." See Hale, Bailm. & Carr. pp. 78, 98, 253; Schouler, Bailm. & Carr. (3d Ed.) §§ 117, 159; Lawson, Bailm. §§ 20, 344; Story, Bailm. (9th Ed.) §§ 269, 414; Ingram v. Rankin, 47 Wis. 406, 2 N. W. 755; Hyde v. Refrigerating Co., 144 Mass. 432, 11 N. E. 673; Motley v. Warehouse Co., 122 N. C. 347, 30 S. E. 3; Hale, Dam. 185. Although there was some evidence that odors were contaminating a part of the butter before the bailment ended, yet, in legal contemplation, appellee was injured when appellant failed to return the property in as good condition as when stored. The fact that the market value of the property may have been greater or less at the termination of the bailment than at some time during the bailment has nothing to do with fixing the correct legal rule as to the measure of damages. The contract was from month to month. The record shows that the contract of bailment was voluntarily continued by appellant after it knew a part of the butter was becoming contaminated. It had full control over the manner of storage, and had it in its power to remove the contaminating influences. In Ingram v. Rankin, 47 Wis. 406, 2 N. W. 755, the court said: "The rule fixing the measure of damages in actions for breaches of contract for the delivery of chattels, and in all actions for the wrongful and unlawful taking of chattels, whether such as would formerly have been denominated 'trespass de bonis' or 'trover,' at the value of the chattels at the time when

delivery ought to have been made, or at the taking or conversion, with interest, is certainly founded upon principle. It harmo nizes with the rule which restricts the plaintiff to compensation for his loss, and is as just and equitable as any other general rule which the courts have been able to prescribe, and has greatly the advantage of certainty over all others." In Motley v. Warehouse Co., 122 N. C. 347, 30 S. E. 3, tobacco was stored in October, 1894, for an indefinite period, and was returned to the owner in June, 1895, in a damaged condition. It is not expressly stated when, but it is manifest from the opinion that the injury occurred some time during the storage. The rule as to the measure of damages was held to be the difference between what the tobacco would have brought on the market at the place on the day it was delivered to the owner if it had not been damaged, and what it would have brought on the same market on the same day in its damaged condition. .

In actions for breach of a contract to deliver goods, the general rule is that the measure of damages is the difference between the contract price and the market value at the time and place fixed by the contract. Rahm v. Deig, 121 Ind. 283, 23 N. E. 141; Vickery v. McCormick, 117 Ind. 594, 20 N. E. 495. It is true, in such cases the contract itself fixes the time for the ascertainment of damages. And so a common carrier must deliver goods within a reasonable time after transportation, and damages for failure to deliver are to be ascertained as of the date of delivery. In the case of Adams v. Sullivan, 100 Ind. 8, cited by counsel for appellant as sustaining its view of the instruction in question, appellee placed with appellant eggs and butter in cold storage beginning June 8th and ending September 5th, and when withdrawn from storage they were found to be damaged, for which suit was brought. The trial court instructed the jury: "The plaintiff is, however, entitled to recover the highest market price he could have obtained at the time of the injury for the goods, had the defendants fully performed their duty, and properly preserved the goods during the time they were bound under their contract to keep them in storage." Upon appeal this instruction was disapproved, the court saying: "The jury ought to have been told that, in assessing the damages, the eggs should have been estimated according to their market value in the city of Indianapolis when they were injured. The rule for the assessment of damages in actions of trover, for breach of a contract to be performed at a particular place, and for injuries to goods in transitu by common carriers, concurrently sustain us in the conclusion we have reached, adverse to the correctness of the instruction set out in part as above. Besides, when the market is fluctuat ing and the precise time somewhat indefinite, the average range of prices about the time inquired of affords the proper standard of the

market value of a commodity." Whether the expression "when they were injured" should read "when they are injured" (and an examination of the original manuscript opinion, as written, leaves the question in some doubt), we think it unnecessary to inquire, because the instruction was held erroneous for estimating the damages at the highest market price which might have been obtained for the eggs in any market. There seems to have been no controversy in the case about the time when the damages should be estimated. There is no question in the case about any injury prior to the time the eggs were withdrawn from storage. Obviously, the damages were estimated as of the time they were withdrawn from storage; that is, when the bailment ended. It would seem from the opinion that the clause mentioned could have been omitted so far as the effect then given it is concerned, as the statement is made that the rule for the assessment of damages for injuries to goods in transitu by carriers sustains the court in the rule announced; and it is well settled that damages for injuries to goods in transitu are not determined as of the time and place when and where injured, but they are to be ascertained as of the date of delivery. It is not intended to criticise in any way the case of Adams v. Sullivan, but, taking the question at issue in that case, and the opinion as a whole, we do not think we have declared a rule in the case at bar at variance with the holding in that case.

The general rule is that in an action of trover the measure of damages is the value of the property at the time of the conversion. But the time of conversion is not always fixed by the same circumstances. So long as the wrongdoer retains the property in kind, the owner may recover it. He may sue in replevin for the recovery of the specific property, or he may sue in trover for damages for the value of the property. If he sues for damages, a demand does not necessarily fix the time of conversion, but a demand and refusal are sufficient evidence of it. Even though the form of the property has been changed, and its value increased, it may be recovered in its changed form. Likewise, its increased value may be recovered. An examination of the authorities will disclose that, while the general rule is that the measure of damages is the value of the property at the time of the conversion, it is not a universal rule. Thus, in a suit for the value of logs appropriated by a defendant who had cut and hauled them to his mill, about five miles distant, the measure of damages was held to be the value of the lumber in the logs at the mill at the time they were there converted, and not the value of the logs when severed from the freehold. Everson v. Seller, 105 Ind. 266, 4 N. E. 854. See Final v. Backus, 18 Mich. 218. And in Ellis v. Wire, 33 Ind. 127, where defendant took possession of wheat standing In the field, and afterwards harvested and sold the grain, in a suit for conversion it was

held that the owner was entitled to the highest price of the property at any time between the taking and the sale. In Railroad Co. v. Robbins, 144 Ind. 671, 42 N. E. 916, 43 N. E. 649, it was held that the measure of damages for the conversion of railroad stocks is the highest intermediate value between the time of conversion and a reasonable time after the owner has received notice of the conversion to enable him to replace the stock; and in that case the date of the demand for the stock was fixed as the date of the technical conversion, and the value of the stock was fixed as of that date. In Cattle Co. v. Mann, 130 U. S. 69, 9 Sup. Ct. 458, 32 L. Ed. 854, the conversion was held to have occurred when there was a refusal to comply with a demand. See Vaughan v. Webster, 5 Har. (Del.) 256. In Bank v. Boyd, 44 Md. 47,-a suit for damages for the loss of bonds,-the measure of damages was the market value of the bonds when lost. It will be seen from an examination of the above cases that a demand and refusal are evidence of a conversion, but that they do not fix the time of conversion, and that, while the damages are fixed as of the time of the conversion, they may be fixed without reference to the time of any demand by the owner.

It cannot be said that the instruction gives appellee damages that might have been avoided. The butter was continued in storage after both parties knew that a part of it had become damaged. It was a matter of contract. Appellant could not have terminated the bailment by taking advantage of its own wrong. If the instruction is open to objection in this respect, it is not an objection appellant can make. Appellee left the butter in storage under a contract. The rights of the parties to the contract were not affected by the fact that the market price of butter rose. There is no reason for supposing that this rise disturbed the ratio previously existing between the value of good and damaged butter. The rise would naturally affect both. See The Compta, 5 Sawy. 137, Fed. Cas. No. 3,070; Gibbs v. Gildersleeve, 26 U. C. Q. B. 471.

Upon the question of contributory negligence, appellant's counsel say that if appellee, at the time of the storage, knew exactly the circumstances under which the butter would be stored, and knew that the result would be that the butter would be injured if so stored, there could be no recovery. This is true, but the record does not present such a case. The jury answered that appellee's officers visited the warehouse before making the contract of storage, but the jury also found, and there is evidence to support the finding, that appellee's officers were not acquainted with the method of storage used by appellant company.

It is also argued that the court erred in its instruction concerning the burden of proof. This instruction reads: "While I have already instructed you that the general rule is that the burden is on the plaintiff to