Motor Power Equipment Co. v. Park Transfer Co., 29294.

• Decision Date: 03 March 1933
• Docket Number: No. 29295.,No. 29294.,29294.,29295.
• Citation: 247 N.W. 244,188 Minn. 370
• Parties: MOTOR POWER EQUIPMENT CO. v. PARK TRANSFER CO. et al.
• Court: Minnesota Supreme Court

247 N.W. 244

188 Minn. 370

MOTOR POWER EQUIPMENT CO. v. PARK TRANSFER CO. et al.

No. 29294.

No. 29295.

Supreme Court of Minnesota.

March 3, 1933.

Appeal from District Court, Hennepin County; P. W. Guilford, Judge.

Separate actions by the Motor Power Equipment Company against the Park Transfer Company and others. The actions were consolidated and tried to the court without a jury. From an order denying its motion for a new trial, plaintiff appeals.

Affirmed.

Paul C. Thomas, of St. Paul, for appellant.

Oscar A. Brecke and Edward T. Chesnut, both of Minneapolis, for respondents.

LORING, Justice.

These two actions were brought to recover from a public contractor and his bondsmen for what was alleged to be the rental of a gasoline power shovel. The two actions were consolidated and tried to the court without a jury, and resulted in findings and conclusions in favor of the defendants. Motions were made for a new trial, and plaintiff has appealed from the court's orders denying those motions.

Plaintiff is in the business of selling contractors' road building equipment, and prior to the transaction involved in this appeal had had some dealings with a contractor named Letwinik.

Prior to or about May 14, 1930, the defendant Park Transfer Company entered into two contracts with the state in connection with the building of two roads in Ottertail and Hubbard counties. The company gave the statutory bond in connection with each contract, the defendant Royal Indemnity Company acting as surety on the Ottertail county job and the defendant Georgia Casualty Company on the Hubbard county job. On the same day the company sublet a portion of the two jobs to Letwinik by one written contract. At that time the plaintiff had on hand a reconditioned B 3 Speeder gasoline shovel which it valued at $6,360. Letwinik wanted to buy this shovel for use in his contracting work, and May 17, 1930, entered into a contract which the parties denominated a lease, by the terms of which he was to pay what was designated as a monthly rental of $500 per month for twelve months and $360 on the thirteenth month, thus agreeing to pay what was stated in the so-called lease to be the value of the shovel. It was provided in the so-called lease that Letwinik should keep the shovel free of all liens, taxes, and incumbrances, and should not remove it from the county or state of his residence or transfer any interest therein or make any material change in the chassis, body, or equipment without the plaintiff's written consent, and that he should carry insurance not exceeding the value of the property at the time of the loss as the value was defined in the contract. Conditions were described therein which would result in the right on the part of the plaintiff to repossess the shovel. Perhaps the most significant provision was an agreement that in case of loss or destruction either total or partial Letwinik agreed to pay to the plaintiff the value of the property at the time of the loss or destruction, the value to be determined as follows: "From the value of said property at the time of delivery of same to the lessee as set forth above shall be deducted the total of rental payments theretofore made and the sum thereby arrived at shall be the value."

This provision is also the one referred to in connection with the insurance. The last paragraph of the contract...