Southern Pacific Co. v. Von Schmidt Dredge Co.

Plaintiff sued to recover damages for injuries sustained by two of its barges while under charter to defendant company. Plaintiff is a corporation, defendant a copartnership.

Tbe complaint contained two counts, tbe first tendered issue upon tbe violation of a covenant in a written contract, while the second charged defendant with failing to exercise the ordinary care required of a bailee for hire. (Civ. Code, sees. 1928-30.)

It is undisputed that defendant took the barges upon December 20th, and returned them upon January 2d following. Under the first count defendant denies that it covenanted to return the *370 barges in good order, ordinary wear and tear only excepted. Under the second count it denies a failure to exercise ordinary care for the preservation oí the leased property. It affirmatively alleges that injury to the barges was occasioned by an unusual and unprecedented storm, and resulted from the act of G-od or inevitable casualty.

At the conclusion of plaintiff’s evidence a nonsuit was granted, and from the judgment entered plaintiff appeals.

Plaintiff, in support of its first count, offered in evidence the following contract, which was denied admission as not being…