Pacific Bridge Co. v. Riverside Rock Co.

Bailment—Construction of Contract—Subject Matter. 1. Under a contract of lease of a steam shovel requiring the lessee to return it in good condition, ordinary wear and tear excepted, the lessee is not entitled to recover the expense of repairing the machine after an accident. [As to liability of bailee for misuser, see note in 12 Am. Dec. 619.] Bailment—Redelivery of Property—Liquidated Damages—Liability. 2. Where a lease of a steam shovel provided for a penalty of $10 per day for delay in return of the shovel after the expiration of the contract, the lessee was not released from liability for the penalty by the fact that the delay was rendered necessary to make repairs after an accident to the machine on the last day of the lease.

From Multnomah: Henry E. McGinn, Judge. Department 2. Statement by Mr. Justice Eakin. This is an action by the Pacific Bridge Company, a corporation, against the Riverside Rock Company, a corporation, and is brought to recover $10 a day rent as penalty from the defendant for delay of 112 days in returning to plaintiff a steam shovel after the term for which it was rented had expired. The contract was in writing in the form of an offer and acceptance, as follows: “Portland, Oreg-on, April 28, 1911. “Riverside Rock Co., * * City— “Dear Sirs: Confirming our recent conversation upon the subject of leasing our steam shovel to your. company, will state that it is our understanding that the shovel is turned over to your concern for a period of four (4) months under the following conditions: 1. That we will receive two hundred and sixty dollars ($260.00) for each month, commencing with the day the shovel is given steam pressure in your quarry, it being understood that twenty-six days at ten (10) hours each will constitute a month’s work. If the shovel is operated more than ten (10) hours per day, or on Sundays or holidays, that we will receive additional compensation at the rate of one ($1.00) dollar per hour for each hour that the shovel is employed in excess of twenty-six (26) days per month. 2 (a). It is understood that the shovel, as received by your company, is in first-class operating condition, fully equipped with all necessary tools and appliances for operating the same. That it will be returned to us in the same condition, with freight charges prepaid at the termination of your lease. * * (b) It is understood that ordinary wear and tear are excepted, providing J. W. Likens is engaged as engineer, or any other engineer that meets our approval. 8. That all tools, rail sections, and other equipment shipped with the shovel will be returned at the same time the shovel is shipped, or payment will be made for the same, it being considered that all the tools and equipment are equivalent to newly purchased articles of the same kind and quality. * * 5. If the shovel is required by your company after the expiration of the above leased term, it will be optional with us whether the time is to be extended. It is understood that the rental of ten dollars ($10.00) per day will be paid to ns until a shipping receipt issued by the O. W. R. & N. Co. covering the shovel and car carrying parts belonging to the shovel is delivered to us, provided there is any delay in sending the shovel to us after the expiration of the above leased period. It will devolve upon you to notify us in writing, not less than fifteen (15) days before the leased term expires to open negotiations for further rental of the shovel. * * ” The acceptance by defendant was indorsed on the offer. At the expiration of the term, namely, on the 26th day of September, the rent at that date being paid, the shovel was injured by an alleged accident and could not be used without repair. Defendant shipped it to a repair shop and repaired it at a cost of $2,677.40, which it paid, and returned the shovel to the plaintiff on January 20, 1912. Plaintiff sued for the rental of the shovel and for $10 a day from September 26th to January 20th. Defendant denied liability and pleaded the item of repairs and the cost thereof as a counterclaim. The above facts are admitted, and the only question is whether under the contract plaintiff is liable to defendant for the amount of the counterclaim and whether the contract to pay the rental subsequent to the accident was terminated thereby. Judgment was rendered for the plaintiff for the full amount for which it sued, and defendant’s counterclaim was disallowed.