166 Mo. App. 332 | Mo. Ct. App. | 1912
— The plaintiff hired a piece of machinery, i. e., a motor to the defendant at twenty-five dollars a month. The contract of hiring was contained in a letter addressed by the plaintiff to the defendant and accepted by the latter, and contained provisions as follows: “It is distinctly understood that while the motor is in your possession you (the defendant) are responsible for any damage thereto, barring ordinary wear and tear, and that after you have no further use for same, you will return said motor in as good condition as when received, barring ordinary wear and tear.”
This being an ordinary bailment for mutual benefit, if there was no special contract enlarging the defendant’s risks as bailee, the law bound it to exercise only ordinary care and diligence to keep the property safely and to return it when the time of the hiring had expired. It did not hold the defendant responsible for an injury occurring without its "fault. [McEvers v. Steamboat Sangamon, 22 Mo. 187; Grady v. Schweinler, 14 L. R. A. (N. S.) 1089.] But the defendant could, by special contract, enlarge its liability, even to the extent of securing the plaintiff against all loss whatever. The question here is, did the parties intend that the contract before us should have that effect. The particular language in question is: “It is distinctly understood that while" the motor is in your possesssion you are responsible for any damage thereto, barring ordinary wear and tear.” Bailees are not to be presumed to have become liable as insurers and we should not expound this language unfavorably to the bailee, beyond its obvious scope. [3 Am. and Eng. Ency. Law (2 Ed.), p. 750.] But this does not mean that we must distort or ignore the language used by the parties; on the contrary it is our duty to give it effect as showing their intention unless there is something in the nature of the subject-matter or otherwise to indicate a different one. If the words used here are given effect as they must be, we are unable to see how defendant can escape liability for damage by
Precedents are of little value in construing such contracts as this because so much depends upon the
Now, it is apparent that none of the foregoing cases is applicable to the case at bar. The obligation here is not merely to “return said motor in as good condition as when received, barring ordinary wear and tear,” though that obligation is contained in the contract. Over and above that “it is distinctly understood” that while the motor is in its possession, the bailee is “responsible for any damage thereto barring ordinary wear and tear.” Here, there is no implied condition of the continued existence of the property, but there is an express provision as to liability
Defendant also cites the case of Fairmont Coal Co. v. Jones & Adams Co., 134 Fed. Rep. 711, but that case can be of no assistance to us here because the court based its construction of the language there employed upon other provisions of the contract; provisions which are absent here. The case of Link v. Hathway, 143 Mo. App. 502, 127 S. W. 913, so far as this matter is concerned, turned on a question of fact as to what the agreement was, and not of law, and of course can be of no aid to us in this case. Nor do we believe that cases are in point where property is bailed for hire to a party who is to do something with it for the bailor, like transporting it, and the bailee agrees
The defendant also suggests that the contract being on a form prepared by the plaintiff, “all ambiguities — all doubts — therein must be determined in favor of defendant.” The rule thus sought to be invoked is not very important, and is resorted to only when all other means fail. It is still further weakened in this case by the fact that the defendant signed the agreement also and even caused some changes to be made therein, thereby to a considerable, if not entire, extent becoming privy to the speech of the plaintiff. [Bishop on Contracts, sec. 414.] We do not think there is still such a doubt as to the proper construction of the contract that this rule can be of service here.
The judgment is affirmed.