[No. 9742.

Department One.

November 10, 1911.]

#### J. J. Smith, *Respondent,*v. Diamond Ice and Storage Company, *Appellant.**1*

Warehousemen — Cold Storage — Negligence—Evidence—Sufficiency. A verdict for damages to meat held by defendant in cold storage is sustained by evidence that it was in good condition when delivered, and became unmarketable by reason of the odor of iodoform and fish acquired while in defendant’s custody.

Same — Negligence—Question for Jury. In an action for damages to meat held in cold storage by defendant, the question of defendant’s negligence is for the jury, where there was evidence that one piece of meat had a very pronounced iodoform odor when received which would be communicated to the balance if stored together, and that it was so stored and all became unmarketable by reason of the odor.

Appeal — Review—Necessity of Cross-Appeal — Bond. Respondent cannot urge error in not adding interest to a verdict for damages, in the absence of any cross-appeal duly perfected by the filing of an appeal bond as required by Rem. *&*Bal. Code, § 1721.

Appeal from a judgment of the superior court for King county, Albertson, J., entered April 6, 1911, upon the verdict of a jury rendered in favor of the plaintiff, in an action for damages.

Affirmed.

*Peters & Powell,*for appellant.

*Carver & Slattery,*for respondent.

1

 Reported in 118 Pac. 646.

Parker, J.

— This is an action to recover damages, alleged to have been caused by the negligence of the defendant in allowing meat placed in its custody for storage to be contaminated with offensive odors rendering it unmarketable. A trial resulted in a verdict and judgment in favor of the plaintiff, from which the defendant has appealed.

Respondent is engaged in the meat business in the town of Bothell, a short distance from Seattle. Appellant is engaged in the cold storage business in Seattle. They entered into a *577contract by which appellant agreed to properly freeze and store in cold storage for respondent a quantity of meat, for an agreed compensation. Respondent’s cattle were to be butchered by the Yakima Sheep Company, it being engaged in that business in Seattle, and the meat then to be delivered by it to appellant. This was done accordingly, and the meat received by appellant in the absence of respondent. There was evidence tending to show that all of the meat was in good condition and free from odor of foreign substances when it was delivered to appellant. On the other hand, there was evidence tending to show that one of the pieces of meat had an odor as if it were impregnated with iodoform, at the time of the delivery of the meat to appellant. This constitutes the only very serious conflict in the evidence. The evidence further tended to show, that if the one piece of meat was impregnated with iodoform and stored with the other meat, it would probably cause all of the meat to acquire the same odor; that some time after the meat had been received by, and while in storage with, appellant, it was found to be contaminated with the odor of iodoform and fish to the extent that it was rendered unmarketable, thus causing the damage to respondent for which he sues in this action. Appellant offered no explanation of this condition of the meat, save'the evidence which tended to show the iodoform odor attending the one piece at the time of delivery, and the probable communication of that odor therefrom to the other meat while in storage.

It is contended by counsel for appellant that the evidence was not sufficient to sustain the verdict. We think, however, that this contention cannot be upheld in view of the facts which the evidence tended to show, as we have above briefly outlined. The question of the condition of the meat when received by appellant was clearly one for the jury to determine, in view of the conflict of evidence upon that question. And since the evidence tended to show, with little or *578no conflict, the depreciated value of the meat by reason of the odor of iodoform and fish, while in appellant’s custody some time after its delivery, the evidence as a whole was sufficient to sustain the verdict. In other words, if the jury believed that the meat was all received by appellant in good condition, and acquired these odors causing its damage while in appellant’s custody, such facts sustain the verdict. *Berger v. St. Louis Storage & Commission Co.,*136 Mo. App. 36, 116 S. W. 444; *Johnson v. Perkins,*4 Ga. App. 633, 62 S. E. 152; *Holt Ice & Cold Storage Co. v. Jordan Co.,*25 Ind. App. 314, 57 N. E. 575; *Foster v. Pacific Clipper Line,*30 Wash. 515, 71 Pac. 48; *Pregent v. Mills,*51 Wash. 187, 98 Pac. 328.

Counsel for appellant also rested their defense upon the theory that respondent, through his agent the Yakima Sheep Company, delivered one piece of meat having the iodoform odor, from which resulted the damage to the balance of the meat, and that thus the damage was caused by respondent’s contributory negligence. In opposition to this theory of the defense, counsel for respondent argue that the evidence does not warrant the conclusion that there was any such odor attending any of the meat when delivered to appellant ; that even if there was, appellant had full knowledge thereof and of the probable damage which would result to the other meat by being stored with a piece having such odor; and that, therefore, appellant was, in any event, guilty of such negligence as would render it hable for the damage so caused.

The trial court instructed the jury upon this theory, as well as upon the theory of the damage being caused by something independent of that fact while the meat was in the appellant’s custody; instructing the jury, in substance, that such storing of the piece having this odor with the other meat might amount to such negligence as would entitle respondent to recover — leaving to the jury the question of whether or not there was any meat delivered in such condi*579tion, and whether in thus storing the meat together the appellant exercised reasonable care under all the circumstances. In view of the evidence, given at the instance of appellant, tending to show a very pronounced iodoform odor attending this one piece, the appellant’s knowledge thereof, the probable damaging results of such storing, and the absence of respondent at the time of delivery; and in view of the nature of the service appellant contracted to render to respondent in the storing of the meat for the purpose of its preservation, we think the trial court was not in error in instructing the jury so as to permit them to find negligence of appellant upon this theory which might, in any event, entitle respondent to recover. When we mention the fact that respondent was absent when the meat was delivered to appellant, we do not lose sight of the fact that the Yakima Sheep Company was his agent for the delivery of the meat. While that is true, it is also true that appellant owed respondent the duty of properly storing and caring for the meat, in view of the nature of its contract. And under all these circumstances, we think it was for the jury to say whether such care had been exercised by appellant as the contract contemplated, and as to whether or not the lack of such care was the proximate cause of such damage.

Counsel for respondent contend that the trial court erred in not adding interest to the amount found by the verdict of the jury, computed from the time of the commencement of the action, upon the theory that interest would attach at that time, since the commencement of the action was a demand for the payment of an unliquidated claim. This question, of course, would not be before us except upon an appeal taken by respondent from the judgment, since it is an effort to have that judgment revised. The record before us fails to show a perfected appeal taken by respondent from the judgment. This fact was noticed and counsel’s attention was called to it upon oral argument in this court, when it was understood that a supplemental transcript should be *580sent to this court from the superior court, showing the condition of the record in that particular. A supplemental transcript has been filed here accordingly, but it shows no steps taken towards an appeal, other than a notice of appeal. No bond has been furnished looking to the perfection of that appeal, and it is therefore “ineffectual for any purpose.” Rem. & Bal. Code, § 1721. We are not called upon to notice this question.

The judgment is affirmed.

Dunbar, C. J., Mount, Fullerton, and Gose, JJ., concur.