Peper v. St. Louis Brass Manufacturing Co.

146 Mo. App. 187 | Mo. Ct. App. | 1909

GOODE, J.

(after stating the facts). — These points are raised: First, no evidence was adduced to establish a breach of the covenant by defendant to turn over to the lessors, at the expiration of the term, the engine, machinery and appliances in perfect condition, save natural wear and tear; the gist of this contention being the broken condition of the crank pin was not shown to have resulted otherwise than from natural wear and tear' Second, no proof was made of the amount of damage sustained by plaintiffs, even if the covenant was breached by defendant. According to the fourth and sixth paragraphs of the stipulated facts, the broken and riveted crank pin rendered it impossible to operate the engine safely and successfully. This pin was originally an integral part of the main shaft of the engine and not fastened to it by a rivet, welding, or in any other way, and obviously needed to be sound for the engine to work well. As the machinery was turned back to plaintiffs with the shaft so badly out of order the engine could not be operated, it was not turned back in perfect condition; and the question is whether its imperfect condition was due to natural wear and tear, and hence defendant was exempt, under the clause of the lease quoted in the eighth paragraph of the stipulated facts, from the obligation to make it perfect before surrendering the premises. Or, to state the question jn the phase in which counsel for defendant states it, we ask whether the court might infer, from the stipulated facts, the imperfect condition of the engine was not due to natural wear and tear, or might hold it was not as a matter of law. Nothing is said in the agreed facts about what - caused the pin to break, or as to whether the break was due to negligence, strain in operating the engine, or some flaw in the metal.

1. Abstaining from ' an attempt to ascertain the meaning of the words “natural wear and tear” in a broad sense, we shall confine our inquiry to the meaning the parties understood them to have in the lease before us. The reasoning of the court below in regard to this inquiry strikes us as sound. In an opinion which accompanied the judgment, the court pointed out that in the last clause of the quoted portion of the lease, the lessee not only agreed to exercise every precaution in the maintenance and use of the machinery, but agreed further to assume all cost of repairs and, at the expiration of' the term, turn over the machinery and equipment to the lessors in perfect condition, “saving natural wear and tear.” The learned judge said the obvious purpose of those stipulations was to insure the return of the property to the lessors in perfect condition, save as to faults due to natural wear and tear, inasmuch as every possible precaution in the use of the property was exacted of the lessee and also an agreement to assume the cost of repairs and return it in perfect condition. In view of those requirements, the court thought the conclusion was impossible that the parties contemplated the machinery could be turned back in perfect condition, save as affected by natural wear and tear, with the engine broken so the machinery would not run. We are persuaded this reasoning is sound and that the parties executed the lease understanding it required defendant to make whole such damage to the machinery as might result from accidents; like the fracture of the engine shaft. The stipulation regarding repairs and returning the property in a perfect condition cannot be held to mean that only repairs and restoration should be made of damage occasioned by defendant’s negligence. This is true because there was an independent covenant requiring the most extreme care by defendant in using the machinery, and defendant was, of course, liable for a breach of it; and besides, he covenanted to make repairs and restore the property in perfect condition, saving natural wear and tear, which covenants also might be breached. Read together those provisions evidently contemplated it would be defendant’s duty to make good injuries which might occur after every possible precaution had been exercised in using the machinery, unless the injuries occurred from natural wear and tear; and if every fortuitous injury, like the breaking of tbe engine shaft, was meant to be taken as natural wear and tear, one hardly can conceive of an accident to the machinery which would not fall within the saving exception to defendant’s obligation to repair. The requirement that defendant should return the machinery in perfect condition, saving natural wear and tear, might become nugatory by defendant’s having the right to return it broken so it could not be operated. “Natural wear and tear,” seems rather to signify wear resulting from friction and the gradual tearing apart of joints, rivets and other portions in the operation of the machinery. The meaning of the words has been passed on in judgments of courts in the following cases, which we think unnecessary to abridge or do more than cite for the examination of the reader. [Jaques v. Gould, 4 Cush. 384; Manchester, etc., Co. v. Carr, 5 C. P. D. 507; Thompson v. Cummings, 39 Mo. App. 537; Green v. Kelly, 20 N. J. L. 544; Waddell v. Dejet, 76 Wis. 104; McIntish v. Lown, 49 Barb. 550; Lockrow v. Hogan, 58 N. Y. 635.]

2. Defendant says there was no proof of what damages plaintiffs sustained from the breach of the lease, if it was broken, and hence the court was not justified in giving judgment for more than nominal damages. The parties agreed the shaft could be reriveted for two hundred dollars, but would not be as good as before it broke; hence plaintiffs were not bound to repair it in that manner in order to keep the damages down; for they were entitled to have the machinery restored so it would be in “perfect condition.” It was agreed a new shaft would cost $765 if supplied by the maker of the engine, and $740 if supplied by a competitor. The court accorded to defendant the benefit of competition and as nothing but a new shaft would make the engine perfect, and this could not be obtained for less than the amount for which the court gave judgment, we cannot see where defendant has room for complaint. We think the conclusion is inevitable that plaintiffs were damaged at least to the amount of the lowest sum for which they could renew the shaft, as that was the only way to render the engine perfect or enable it to be operated safely and successfully. [Burke v. Pierce, 83 Fed. 95; Joyner v. Weeks (1891), 2 Q. B. 33.] That only a verdict for nominal damages was permissible is an untenable position, inasmuch as defendant agreed it would take as much as two hundred dollars even to rerivet the shaft.

The judgment is affirmed.

All concur.