288 P. 1044 | N.M. | 1930
After the equity suit for injunction was dismissed, appellant brought suit upon injunction bond against the surety, the appellee, to recover damages caused by the injunction. The trial court awarded damages covering attorney's fees, expended by appellant, but refused to consider evidence of damages for alleged wrongful detention of the property or damages for alleged failure of said principal to repair said equipment. This appeal is taken upon the ground that the damages awarded by the trial court are inadequate.
The trial court ruled that the contract between the parties was severable, and the discharge of the appellant *7 and excluding him from work was not a breach of the entire contract, authorizing him to retake the drilling equipment. Appellant says this was error. We think the ruling was correct. The effect of the contract was to invest the possession of the drilling equipment in the owner of the oil and gas lease upon whose property the equipment was placed by appellant and in whose possession it was to remain until the drilling operations were completed. But the appellant contends that the effect of the injunction was to prevent the plaintiff from continuing further in the capacity of superintendent and driller in charge of the operations, and for that reason the whole contract was breached by the defendants in the injunction suit, and that said defendants no longer had the right to the possession of the property after having made it impossible for the appellant to continue as superintendent and driller.
[1-3] This brings us again to a consideration of the contract for a determination as to whether said contract was severable or entire. We agree with the trial court that the contract is severable. Some of the covenants result in the rental of the equipment by plaintiff to the owner of the oil and gas lease, for the use of which equipment the appellant was to receive the assignment of certain oil and gas leases "in lieu of rental and in full compensation for the use of said well drilling outfit," etc. The employment of appellant as superintendent and driller at stipulated wages is a separate and independent subject. We have several times said that whether a contract is severable or entire is to be determined by ascertaining the intention of the parties as expressed by the terms of the contract in the first instance. See Fancher v. County Commissioners,
[4] We also think that the argument of appellant that failure of appellee's principal to keep the rig in good condition and repair, and the action of appellee's principal in assigning or subletting their right in the contract and appellant's equipment to another, constituted a breach which gave appellant the right to terminate the contract and remove said equipment from the premises, is unsound. Such may be the law controlling simple bailments, but the transaction in the case at bar is something more.
While, strictly speaking, the transaction may be a bailment, in some cases the parties to the letting of personal property are spoken of as landlord and tenant. 35 C.J. Landlord and Tenant, § 9. In discussing the right of a bailee, it is said in 6 C.J. Bailments, par. 68:
"Where the bailment is accompanied with other contracts or stipulations which affect its character, and give to the bailee other rights not incident to a simple bailment, where there is no personal confidence and none of the characteristics of an estate at will, and where it would be entirely consistent with the analogies existing in the case of real estate to hold that the bailee has an assignable interest which may be transferred to a third person, an assignment by the bailee will be enforced and protected as between the parties and as against all parties whose interests are not injuriously affected by the transfer. Of this class are cases * * * where there is a hiring for a fixed time without restriction or limitation from which any personal confidence may be inferred."
There is nothing we discover in the contract which implies a personal confidence in the bailee or tenant or distinguishes it from an ordinary lease transaction. There is no covenant against assignment or subletting. We also observe that there is no forfeiture clause in the contract or lease of appellant's drilling equipment. In 35 C.J. Landlord and Tenant, § 235, it is said:
"Except as otherwise provided by statute, a tenancy cannot be terminated for a breach of covenant by the lessee where there is no provision in the lease for a forfeiture or right of re-entry on the occurrence of the breach. The only remedy is by action for damages for breach of the covenant. This rule applies equally well not only to a breach of covenant to pay rent, but also to the breach of a covenant against assigning or subletting, * * * or the breach of a covenant to make repairs;"
See, also, Parsons v. Ball (1924)
"The contract does not provide in terms for forfeiture of the leased premises, or of the lessee's right under the lease, in case he *9 fails to keep the houses in proper repair, and as forfeitures are not favored in law, none will be implied. It follows that the lessee's failure to keep the property in proper repair did not justify the lessor's refusal to re-lease the property in accordance with the terms of the contract. On the contrary, if the lessee was under an implied duty to keep the property in repair, a question not now before us, his failure to perform that duty merely furnished the basis of a claim for damages, or of an action for equitable relief."
As showing that the same principle holds good as to a lease of personal property, see Mason Hamlin Co. v. Devon Manor School (1922)
"There is no provision in the lease authorizing plaintiff to retake the property or declare a forfeiture for failure to pay rent or to keep the property insured; hence, no such right exists. It is not unlike a tenancy of real estate, where the lease must set forth the conditions upon which a forfeiture can be declared. * * * A sufficient answer to plaintiff's claim is that no such right is given in the contract, and the law will not imply a forfeiture for which the parties have failed to stipulate. It would be a novel rule to forfeit a lease of real or personal property for failure to pay promptly an installment of rent, where the contract contains no provision to that effect."
From all of the foregoing, we conclude that the judgment should be affirmed, and it is so ordered.
PARKER and SIMMS, JJ., concur.
WATSON and CATRON, JJ., did not participate.