Fanning

The plaintiff brought this action to recover from defendant, a corporation, the sum of eight hundred dollars, the alleged value of one hundred and seventy-one dozen dressed chickens, which had spoiled while in defendant’s cold-storage room at Coronado Beach.

• The plaintiff based his right to recover upon an alleged contract, entered into on or about October 21, 1895, “by the *597 térras of which, defendant agreed .to take said chickens and to securely preserve the same in cold storage until December 25, 1895,” and alleged that on representations made by defendant plaintiff was induced to believe, and did believe, that defendant was engaged in the cold-storage business, and that defendant received said chickens “and upon receipt placed the-same in said cold-storage rooms and undertook to preserve them until December 25th, unless sooner sold,” and that through the. failure of defendant to carry out its said agreement the chickens became wholly unfitted for food, and the plaintiff was thereby damaged in the sum named.

The ánswer denied all the material averments of the complaint, and set up facts, which were found by the court to be true, to the effect that no such contract as…