Kirstein

Action to recover damages for the loss by fire of goods stored with defendant.

The case was tried before a jury which rendered a general verdict in favor of plaintiff, upon which judgment was entered. Defendant’s motion thereafter made for a new trial was, by order of court, denied, and defendant appeals from both judgment and order.

The goods were by plaintiff and his assignor, in behalf of whom he also sued, consigned to defendant for storage for an agreed compensation. Defendant placed them in a nonfireproof building containing inflammable material, wherein a fire occurred destroying the goods.

The complaint contains three counts; one alleging the loss was due to defendant’s negligence; another, that the goods were consigned to defendant upon an express contract whereby it agreed that they should be stored in a fireproof building; and the other, that defendant by public advertisements and in other ways represented to plaintiff and to the public in general that all its storage rooms were fireproof, which representations were known to and believed by plaintiff, and relying thereon he consigned the goods to defendant for storage.

Appellant insists that the evidence was…