The opinion of the court was delivered by: MEANEY
Plaintiff brings this action against the United States, pursuant to the authority of 28 U.S.C.A. § 1346. The purpose of the suit is to recover for charges accrued against the United States on a contract of bailment in the amount of $ 2,448.67. In its answer the Government asserted a set-off and counterclaim in the same amount.
It is stipulated that the amount of charges claimed by plaintiffs is correct and is due and owing from the United States, subject, however, to any set-off which may exist in favor of the United States, and further that the warehouse charges set forth by the plaintiffs do not refer to storage charges for goods alleged to have been damaged as set forth in the counterclaim. At the trial the validity of a set-off in favor of the Government, in the amount of $ 9.09, was conceded.
1. Plaintiff and the United States entered into a written contract for the storage of certain goods.
2. The merchandise in question consisted of boxes of candy bars. These boxes were in the plaintiff's warehouse from on or about August 15, 1944, until at least September 15, 1944.
3. The boxes were placed on wooden platforms eight inches in height, on the ground floor of the warehouse, and were in that position on September 14, 1944.
4. On September 14, 1944, there was a hurricane which affected the area where plaintiffs' warehouse was located and in which the goods in question were stored.
5. As a result of the hurricane, sewer lines in the vicinity of the warehouse ceased to function and were unable to carry off the rain water that fell in that area.
6. In addition, these sewer lines backed up, allowing quantities of polluted water to flow over the area, including the ground floor of plaintiffs' warehouse, where it rose to a height of about two feet.
7. The goods in question were therefore lying in approximately one and a third feet of polluted water.
8. This flooding occurred during the night of September 14th, some time after six P.M., at which time Craig, the warehouse foreman, left for home.
9. Pumps were set early in the morning on September 15th, and by eleven P.M., that night, the water had been removed.
10. The boxes of candy bars had lain in the position described in finding number 7 for ...