Gay v. Bates

Wells, J.

Upon proof of the character of the defendant aa warehouseman, and the delivery to and receipt by him of the iron for storage, the law, in the absence of other facts, would *267 imply a contract upon the one side to pay a reasonable compensation, and on the other to keep safely and in a propel place, and to exercise reasonable care against injury to the deposit. These facts are admitted; but these facts are not the contract which is the cause of action. The contract is the legal inference from the facts; and that is put in issue by the pleadings. The inference of law furnishes to the plaintiff a primd facie case, so far as proof of a contract is required; but it does not change the burden of proof. The defendant relies upon an express stipulation, at the time of the deposit, that he should not be responsible for injury from rust caused by the previous use of the storehouse for storing salt; and upon the fact that this condition of the place of deposit was known and acquiesced in by the plaintiffs. Of course, the defendant must produce some evidence of facts upon which he relies to limit or qualify his obligations. The effect of such evidence is, not to avoid, but to disprove the contract which the plaintiffs seek to deduce by inference from the circumstances of the deposit. The question is still the same: What is the contract to be implied from the facts ? Is it such as to include the plaintiffs’ alleged cause of action ? That is the ultimate fact which the plaintiffs must maintain.

The letter of January 28 was rightly excluded. We can see no significance whatever in the letter except as a mere proposal of compromise. Exceptions overruled.