The opinion
Piper, J.
(dissenting). I cannot agree with the majority that defendant-appellant Greyvan Lines, Inc. (hereafter referred to as Greyvan), made any agreement with plaintiff to store his household goods in a fireproof warehouse in Buffalo. The plain- [ tiff and his wife had some talks with one or more employees of Greyvan concerning moving plaintiff’s household goods from Cleveland to Buffalo. Both plaintiff and his wife testified that! Tallman, one of these employees, represented that Greyvan had] a fireproof storage warehouse in Buffalo. Tallman denies making any such representation and it developed that at the timel these conversations took place in June, 1947, neither Greyvan! nor its associate Greyvan Storage, Inc., had a warehouse of any! *139 kind in Buffalo. Greyvan Storage, Inc., did acquire a warehouse in Buffalo in September, 1947.
Plaintiff testified in substance that he was in Buffalo in June, 1947, and received a telephone call from his wife informing him that Greyvan would not move the household goods without a letter from him authorizing the transaction, and he wrote a letter dated June 25, 1947, addressed to Tallman, the pertinent part of which is as follows: “ This letter will be your authority to move my furniture and household goods from my apartment located at 2805 Ludlow Boad, Cleveland into your storage warehouse at Buffalo, New York pending a further move to whatever place I may designate after I have located living quarters.”
The shipping order, also referred to as the bill of lading, sets forth that the goods were consigned to plaintiff “ 65 Purdy Street c/o E. F. Dailey Stge., — Perm Stge City Buffalo State N. Y. Delivering Carrier Greyvan Lines, Inc. ’ ’ This instrument was signed “ Dave Miller Per. N. S.” and the record shows it was signed in Cleveland by plaintiff’s son-in-law.
It seems clear that whatever oral conversations took place prior to this time were merged in the letter or the bill of lading or both. If the bill of lading is binding on plaintiff he had notice at the time the shipment was made from Cleveland that his goods were to be stored in the Daley warehouse. Plaintiff testified he had no knowledge that his goods were in the Daley warehouse until October, 1947, some three months or more after they had been moved from Cleveland to Buffalo. The fire which destroyed the warehouse occurred on August 12,1948, some ten months after he admitted he knew where his goods were stored. During those ten months he took no steps to have them removed from the Daley warehouse.
Assuming that Greyvan is bound by plaintiff’s letter and the direction therein to move the goods “ into your storage warehouse at Buffalo ” he had, according to his own testimony, ten months in which to take such steps as he deemed necessary to compel Greyvan to correct the misdelivery. It appears from the record that the only complaint he made was that he was receiving two bills for storage instead of one, as some of his goods, three or four rugs, were moved from Cleveland into Greyvan Storage Warehouse after Greyvan Storage had acquired a warehouse in Buffalo. I reach the conclusion that if there was a misdelivery of his household goods plaintiff waived all his rights by failing to act after he had ample notice of the misdelivery.
*140 The majority of the court base their decision on an oral agreement that Greyvan would move plaintiff’s goods into its fireproof warehouse in Buffalo. I have already set forth plaintiff’s letter which does not mention the word “ fireproof.” I think it is common knowledge that no building is “ fireproof ” in the strict sense that under no circumstances can it be consumed by fire. Undoubtedly in the building trade the word “ fireproof ” means some type of construction. The only proof offered in this case on that subject was by an officer of the Buffalo Fire Department who saw the building after the fire and gave as his opinion that the Daley warehouse was not fireproof. He did not testify as to the type of construction which is ordinarily known as fireproof, although he did testify concerning the city ordinance. Consequently proof is not presented sufficient to establish plaintiff’s cause of action on that theory.
However I base my decision on the ground that there was a complete waiver by plaintiff of misdelivery, if there was a misdelivery. The judgment against Greyvan Lines, Inc., should be reversed and plaintiff’s complaint dismissed. I concur with the majority that the judgment against E. F. Daley, Inc., should be reversed and the complaint dismissed against it.
All concur, except Piper, J., who dissents in part and votes for reversal and dismissal of the complaint as to both defendants-appellants, in a separate opinion.
Present — McCurn, P. J., Vaughan, Kimball, Piper and Wheeler, JJ.
Judgment in favor of plaintiff against defendant E. F. Daley, Inc., reversed on the law and facts, with costs to said defendant, and complaint dismissed as to said defendant, with costs and otherwise judgment affirmed, with costs to plaintiff. Certain findings of fact disapproved and reversed and new findings made.