1. Defendant contends that, when the accident happened to the shovel September 26th, it was at plaintiff’s risk, that defendant was released thereby from the contract to pay rental thereafter, and that plaintiff was liable to reimburse defendant for the expense of repair, both of which questions must be controlled by the construction of the contract. It contemplated that defendant would keep the shovel in repair at its own expense. Any breakdowns or other disabling of the shovel was at its risk and expense, both for its own use and for its return under the terms of the contract. Defendant seeks to have the contract construed as though the shovel had been destroyed without its fault under the rule adopted in many cases cited where the bailed article was lost in a fire or by other unavoidable casualty; but we do not consider that question involved. The machine was disabled for defendant’s use, but was not destroyed. If a sprocket chain, the pump or engine, or other material part had broken without the fault of the defendant, yet it was at defendant’s risk.
2. After the expiration of the lease, the $10 a day payable by defendant was penalty and not payment for use, and the time awaiting repairs did not suspend the payment. But events against which the parties could have provided in their contract can never be set up as an excuse for nonperformance of the obligation; District Township of Union v. Smith, 39 Iowa, 9 (18 Am. Rep. 39). Breakage or injury to the machine, except reasonable wear and tear, was in the contemplation of the parties when the contract was made. The measure for recovery of the damages for breach of contract includes all that was in the contemplation of the parties when making the contract.' That is a rule *341recognized by this court, namely, what may reasonably be supposed to have been within the contemplation of the parties at the time of making the contract: Blagen v. Thompson, 23 Or. 239 (31 Pac. 647, 18 L. R. A. 315); Hoskins v. Scott, 52 Or. 271 (96 Pac. 1112); Hookersmith v. Hanley, 29 Or. 37 (44 Pac. 497). This was in the contemplation of the parties when the contract was made, as shown by subdivisions 2 and 3 of the offer above quoted. If the shovel had been sent home injured or out of repair, plaintiff would not have been required to receive it, or might have received it and recovery had on the contract for damages for its defective condition. It was a plain requirement of the contract that the shovel should be returned at the expiration of the lease, and that for delay defendant should pay $10 per day, and it contemplated that defendant should maintain its operating condition and equipment, ordinary wear .and fear excepted.
The judgment of the lower court is affirmed.
Affirmed.
Mr. Justice Bean, Mr. Justice McNary and Mr. Justice Ramsey concur. Mr. Chief Justice McBride not sitting.
