#### Wm. Townsend *vs.*Samuel M. Rich.

Argued by appellant, submitted on brief by respondent, Oct. 11, 1894.

Affirmed Oct. 26, 1894.

No. 9118.

Evidence *held*to justify the verdict.

Appeal by defendant, Samuel M. Rich, from an order of the District Court of Hennepin County, *Henry G. Hicks,*J., made March 19, 1894, denying his motion for a new trial.

The defendant was in the cold-storage business at Minneapolis having his warehouse on Nicollet Island. The plaintiff, William Townsend of Lapeer, Mich., in November, 1888, delivered to him 1,656 barrels (eleven cars) of Michigan apples to be stored until March and April, 1889, and agreed to pay him therefor ten cents per barrel per month. Plaintiff alleges that defendant kept the .storeroom so warm and damp that mould gathered upon the fruit and much of it rotted and decayed, and plaintiff sustained $2,000 ■damages. Defendant denied this and alleged that the apples were unfit for storage, were an aggregation of many varieties, the clearing up of many orchards late in the seasQn, and had been a month in cars seeking a market and were badly chilled, and that their poor .condition when taken from his warehouse was not his fault. On the trial the jury found for plaintiff and assessed his damages at $500. Defendant moved for a new trial. Being denied he appeals. The discussion here was upon the evidence, whether or not it supported the verdict.

*Merrick é Merrick,*for appellant.

*Larrabee á Gammons,*for respondent.

Mitchell, J.

The sole issue in this case was whether the defendant was guilty of actionable negligence in the care of a quantity of apples which plaintiff had intrusted to him to be kept in cold storage, and the only question of any importance on this appeal is whether the evidence justified the verdict in favor of the plaintiff.

An examination of the record satisfies us that the evidence made *560a case for the jury. We think there was evidence from which the jury were justified in finding that the defendant was negligent in not supplying the storage room with proper ventilation by opening the ventilators in mild weather, and that the decay of the apples was caused, in part at least, by the air becoming damp and foul by reason of this lack of ventilation. The contention of the defendant was that the decay of the fruit was caused by its poor condition when placed in store. The direct evidence as to the condition of the-fruit at that time was very conflicting. The most cogent evidence-produced by defendant was that the apples of another party, placed in store in the same room, and subjected to the same treatment,, remained there longer than plaintiff’s fruit, and came out in good, condition. Strong as this evidence is, it is not conclusive. Apples-that are better keepers or in better condition might withstand improper treatment which would materially increase the decay of fruit that was less hardy, or in poorer condition. Even if the apples were conceded to be in poor condition when placed in store, it would not necessarily follow that plaintiff was not entitled to recover, for if the decay was caused partly by the inherent vice or infirmity of the property, and partly by the negligence of the defendant, the plaintiff would be entitled to recover for the latter. This was apparently the view which the jury took of the case, for, while the damage resulting from the decay of the fruit amounted to nearly $2,000, they only awarded to plaintiff $500.

The defendant makes a great many specifications of alleged error in the admission and rejection of evidence. These are so numerous, and so many of them palpably groundless, that we do not feel called upon to discuss them at length. We have examined all of them, and while, in a few instances, immaterial evidence may have been admitted, or evidence admitted out of its proper order, we do not find a single prejudicial error in the record.

Order affirmed.

(Opinion published 60 N. W. 545.)