Gen. No. 7,440 | Ill. App. Ct. | Apr 25, 1925
delivered the opinion of the court.
Appellee, Nellie North, doing business under the name and style of F. R. North & Company, entered into a contract with the City of Rockford to dismantle an air compressor and snow pump, which were located at the Central Pumping Station of said city, and to move and reinstall the same in the new water works station of said city. The contract price for the work was $5,500. Under the terms of the contract the city, at its own expense, was to furnish an erector and the said compressor and pump were to be dismantled, moved and erected under his direction. It was further provided “that any parts broken by the party of the second part (appellee) are to be replaced by it, unless, however, said parts are broken at the direction of the erector furnished by the party of the first part (the city), in which case the loss shall be borne by the party of the first part.”
The compressor and pump were dismantled at the old station and moved to the new station. Then the erector directed appellee to put the flywheel of the pump, with its shaft attached, in position by means of two cranes. These cranes belonged to the city and were then in its possession and control. Appellee, following the directions given her, attached the cranes and swung the flywheel to a certain point where the director designated, and then, following further instructions of the erector, released the small crane. As the flywheel was being moved in a southerly direction into position, one of the shafts of the crane broke, causing the flywheel to drop, breaking two of the spokes, of the wheel. The cost of the repair of the wheel was $1,043.04. The city paid appellee all of the contract price, except the said sum of $1,043.04, which it refused to pay, on the ground that under the contract the repair bills should be paid by appellee. This suit was brought by appellee for said balance and a judgment was recovered by her for that sum and this appeal follows.
The only question involved is one of construction of the contract. It is contended by appellant that all damage, resulting from breakage, was to be borne by appellee, unless the erector employed by the city expressly directed the breaking. It is urged that the use of the city’s cranes was a bailment and that the defect in the crane, which caused it to break with resulting damage to the flywheel, was of such a character .that it could not be ascertained from a reasonable inspection, and, therefore, the city cannot be held hable for damages.
We do not believe the question of bailment enters into this case. The erector was employed by the city for the purpose of directing the work and of determining the methods to be employed. As to these things he had exclusive power and authority. Whether or not the city’s cranes were to be used at all was solely within his discretion and determination. They were not loaned, hired or otherwise turned over to appellee so as to put them under her possession and control. It seems to us that the situation is lacking in every element of bailment.
Regardless of the question of bailment, it must be determined whether or not the contract contemplates that the city shall only be liable for such breakage as is expressly ordered by the erector. We hardly t.bink the contract is susceptible of that construction. Under the express provision of the contract, appellee was not required to replace parts, except when broken by her, and neither she nor her servants broke the flywheel. It was broken because of a defect in machinery which the director required her to use, and as we have already pointed out, it was the duty of the erector to direct the method of work. If he provided appliances, at his own instigation and of his own selection, appellee should not suffer for his mistakes or errors. The pump was to be installed upon a foundation erected by the city. Now suppose this foundation was insufficient and defective, and while the pump was being installed the foundation crumbled, causing damage to the pump or some part of it, could it be contended that appellee must suffer the loss'? We think not.
The reasonable construction to be placed upon the contract is that it was the intention of the parties to provide that appellee should replace, at her own expense, any part or article broken, uiiless it were broken through some act or direction of the city’s erector. The damage in this case was occasioned by-an accident, which happened in following the direction of the city’s agent, and the loss comes within the exception and must be borne by the city.
The judgment is affirmed.
Judgment affirmed.