105 Wash. 565 | Wash. | 1919
In January, 1916, appellant leased to respondent Poole and one Powell a donkey engine for use in logging operations. The lease was in writing, duly signed, the term was seven months, and the lessees were bound to accept the engine “in present condition,” to pay a rental of $75 per month in advance, and to return the engine, within ten days after the termination of the lease, to any place designated by
■Whatever demands or requests were or were not made for the payment of the rental, or for the return of the engine prior thereto, it seems to be admitted that the return of the engine was demanded in June, 1917, and that the delivery in July was in response to appellant’s requests or orders. The engine was shipped to Tacoma by rail, loaded on a flat car. It stood on the car in the Tacoma yards for some days, where it was seen by appellant and his agent, was finally unloaded at respondents’ expense at the place designated by appellant, and some time thereafter appellant appears to have called respondents’ attention to some missing parts, whereupon respondent
Answering the complaint, respondents denied the allegations as to damaging the engine and as to the missing parts, except some small items aggregating $25.50 in value, which sum, with accrued costs, was tendered and brought into court; and also pleaded that their use of the engine ceased on December 12, 1916, except for one week at a later period, when they used it with appellant’s consent and paid for such use, that the rental had been fully paid for the time that the engine had been in use, and that it remained in their possession thereafter at the request of appellant; that, during such time, they were gratuitous bailees only and held the property for the sole benefit of appellant, the bailor. The case was tried to a jury, which brought in a verdict for the amount tendered only, and a judgment was entered thereon, from which this appeal is taken.
Appellant assigns a number of errors, only one of which we deem it necessary to discuss at any length.
“Of course the amount is immaterial, but that they gave it care, I think it bears on that. He may answer. ’ ’
Then followed testimony in which, after refreshing his recollection by looking over bills and memoranda, the witness was permitted to say to the jury, not only that he had purchased various parts to be put on the engine while it was being operated under the lease, but that he had expended between three and four hundred dollars in purchasing such parts, and, in addition, had incurred a large and indefinite expense for labor and extra time of men employed after working-hours and on Sundays in repairing the engine, and that finally he had discarded its further use because •it was too expensive to keep up.
The rights of bailor and bailee are controlled by the written contract, where one exists, and they may impose upon each other any terms they may choose. 6 C. J. 1110. The bailee is liable upon an express covenant of a written contract to return the property in good condition, or as it was at the time of hiring. 6 C. J. 1112; Robertson v. Plymouth Lum. Co., 165 N. C. 4, 80 S. E. 894; Direct Nav. Co. v. Davidson, 32 Tex. Civ. App. 492, 74 S. W. 790.
Respondents had, by their written agreement, accepted the engine “in present condition,” which condition they were bound to know when they executed
As our conclusion upon the point discussed requires a reversal of the case, the other errors assigned need not be referred to, further than to say that the conduct of counsel in addressing the jury, upon which error is assigned, is not likely to occur upon another trial, and therefore has not been considered. •
The judgment appealed from will be reversed, and the cause remanded with instructions to grant a new trial.
Chadwick, C. J., Main, Mackintosh, and Mitchell, JJ., concur.