Southern Iron & Equipment Co. v. Smith

• Decision Date: 02 April 1914
• Citation: 257 Mo. 226,165 S.W. 804
• Court: Missouri Supreme Court
• Parties: SOUTHERN IRON & EQUIPMENT CO. v. SMITH.

165 S.W. 804

257 Mo. 226

SOUTHERN IRON & EQUIPMENT CO. v. SMITH.

Supreme Court of Missouri.

April 2, 1914.

1. BAILMENT (§ 4) — HIRING OF PERSONAL PROPERTY—WARRANTY—BREACH.

Under a written contract by which locomotive engines, recited as having been overhauled and being in first-class operative condition, were hired for use in construction service in Arkansas and Louisiana, where the engines were not suitable for, and would not do, such construction work in such states, there was a breach of warranty, and the lessee was not liable for the agreed compensation, even though they were mechanically in first-class operating condition when they left the lessor's shops.

2. EVIDENCE (§ 471)—ADMISSIBILITY—FACTS OR CONCLUSIONS.

In an action for compensation for the use of locomotive engines and to recover the expense of making repairs, where defendant's evidence showed in detail the defective condition of the engines when received by him, by reason of which condition they would not do the work for which they were hired, and plaintiff had no difficulty in pointing out particularly each and every portion of the engines, their condition, the defective parts, and the repairs made, the testimony of witnesses for plaintiff that the engines, when they left defendant's shops, were in "good condition," "first-class condition," and "first-class order" constituted conclusions, instead of facts, and gave the jury no assistance in determining the condition of the engines when delivered, and should have been excluded.

3. BAILMENT (§ 14) — HIRING OF PERSONAL PROPERTY—REPAIRS—LIABILITY.

Under a contract by which locomotive engines were hired for use in construction work and warranted to be in first-class operative condition, the lessee, if the engines were suitable for the work and would perform such work by proper management, was liable for the expense of repairs necessitated by damages to the engines caused by him, but, if they were not suitable, and the expenditures were made for the purpose of trying to make them suitable, he was not liable.

Graves and Faris, JJ., dissenting.

In Banc. Appeal from Circuit Court, Jackson County; Walter A. Powell, Judge.

Action by the Southern Iron & Equipment Company against Lucius J. Smith. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with directions.

This suit was instituted in the circuit court of Jackson county by the plaintiff to recover of defendant rent claimed to be due it on three locomotive engines and certain expense and repairs made upon them by plaintiff. The petition was in two counts; the first was for rent, and the second was for the expense and repairs. A trial was had which resulted in a judgment for the plaintiff for the full amount sued for in each count, aggregating $11,705.70. From this judgment, the defendant appealed to this court.

The litigation grew out of the following contract made and entered in by and between the plaintiff and defendant regarding the engines previously mentioned, viz.:

"Memorandum of agreement between Southern Iron & Equipment Co. of Atlanta, Georgia, and L. J. Smith, of Simms, Louisiana:

"First. Southern Iron & Equipment Co. agree to rent, or lease, to L. J. Smith three locomotives for use in construction service in Arkansas and Louisiana, on the following terms and conditions: Locomotive No. 627, Schenectady 18×24" ten wheeler with 50" centers; Locomotive No. 625, 20×24" consolidation with 44" centers; and locomotive No. 618, Schenectady 18×24" six driver switcher, all of said engines having been overhauled and in first-class operative condition. The price to be paid by L. J. Smith to the Southern Iron & Equipment Co. for said engines is $345.00 per month for each engine from the time engines leave our shop until returned to our shop, with an allowance of four days' free time on the going trip.

"Second. The said L. J. Smith agrees to take good and reasonable care of the locomotives, using them on single shift, that is, not exceeding ten or twelve hours out of twenty-four hours per day, and not exceeding six days per week, and return same to the Southern Iron & Equipment in as good condition as when received, usual wear and tear excepted.

"Third. Said L. J. Smith shall have the privilege of purchasing all or any one of the three above-mentioned locomotives at the following prices: Locomotive No. 625, $5,600.00; No. 627, $5,800.00; No. 618, $4,850.00. In the event he decides to so do, the rental for that current month shall be applied to the purchase price.

"Fourth. Payments to be made by the 20th of the month for the rental for the preceding month. This trade to cover period of four months, the said L. J. Smith having the privilege of retaining the engines for a longer period on the same basis.

"Executed in duplicate this ____ day of February, 1908."

The appellant's evidence tended to show the following facts: That the appellant was a railroad contractor, and was engaged in ballasting and surfacing portions of the lines of the St. Louis, Iron Mountain & Southern Railway Company in the states of Arkansas and Louisiana. In order to do that work, appellant had to use stone and other suitable materials, which had to be transported some distance over the tracks of the railway company. This, of course, necessitated the procurement of engines. With that object in view, the appellant applied to respondent for the three engines mentioned, and, on February 3, 1908, the former went to the shops of the latter in Atlanta, Ga., and made known his wants; and, after discussing the matter fully with the officers of respondent, and explaining to them the character and location of his business, as well as the purposes for which the engines were to be used, the appellant was shown three engines, Nos. 618, 625, and 627, and was assured that all of them had been recently overhauled and repaired, and were in good operating condition. The appellant made only a casual observation of the engines before making the contract, never saw them fired up, or had any opportunity to see how they would work. In fact, the evidence shows that appellant was not an engineer, and knew but little about their condition or suitability for work, and so told Mr. Kern, the president of the respondent; also told him that he was not competent to inspect the engines, and had no one there to do it for him. In reply Mr. Kern said it was not necessary, that the engines had just been through the shops, and were in first-class working condition, and that he would put that in the contract. That, knowing practically nothing about engines, appellant relied upon respondent's statements by Mr. Kern, as to their condition and their suitability for the purposes mentioned, and, for that reason, entered into the contract previously set out. That the engines were drawn as freight, and not propelled by their own power, from Atlanta to Simms, La. From Atlanta to Memphis the servants of respondent attended the engines, and from the latter place to Simms those of appellant were in charge. That the engines were carefully attended and properly handled from the time they left Atlanta until their arrival at Simms, and especially from Memphis to the latter point. That, upon the arrival of the engines at Simms, they were fired up and put into service, but, after proper and fair trials, they wholly failed to perform the work designed and called for in the contract. That, upon examinations made by capable men in that business, the engines were found to be mechanically defective and out of repair in many respects, totally unfit to perform the services for which they were rented, not capable of pulling one-half of the tonnage they were designed to draw, and thereby doubling the expense of carriage, and rendering them utterly useless to the appellant. That, after several days of trials of the engines, and after one of them had been twice taken to the shops in Alexandria for repairs, the appellant, by numerous letters and telegrams, notified the respondent of their worthless condition, and requested Mr. Kern to send a man to Simms to investigate and repair the defects. That these defects were so numerous it would be trespassing upon time and space to recite them here; a number of which, if they existed, would render the engines absolutely worthless. That the only reply appellant received was a denial that the engines were defective or were not suitable for the purposes as rented. That finally, on February 25, 1908, Mr. W. A. Love, vice president of the respondent, went to Simms and looked over the engines, but made no effort whatever to put them in useful condition; and thereupon the appellant stored the engines upon a side track, in charge of a watchman, and notified respondent that they were held at its risk and subject to its orders. That, during the time the engines were in the possession of the appellant, they were never used, except in the trials previously mentioned. That, in fact, they were not only of no value to appellant, but were of great cost and expense in trying to use them, in the matter of wages, fuel, loss of time, storage, etc. That, at the solicitation of Mr. Kern, the president of respondent, the appellant met him on June 10, 1908, in the city of St. Louis, for the purpose of conferring with reference to the condition of the engines, and as to what should be done with them. After fully discussing the matter, it was agreed between them that Mr Kern should send the foreman of his shop to Simms, where the engines had been stored, and go over them for the purpose of seeing whether or not they could be made to perform the work mentioned in the contract. That, in pursuance to that consultation, the respondent sent George Bird to Simms, who carefully inspected the engines, without making a report, as I understand the record, to the appellant, and caused them to be removed to a machine and boiler shop at Alexandria, for the purpose of making the repairs that were...