"The court instructs the jury that, under the evidence in this case, the plaintiff and defendant, about the 1st of February, 1908, entered into a contract whereby plaintiff leased to defendant, with privilege of purchase, three locomotives for a period of four months, for use in construction service in Arkansas and Louisiana, at a rental of $345 per month for each locomotive from the time it left plaintiff's shops until returned there, with an allowance of four days' free time on the going trip, and with the privilege
of defendant of retaining the engines for a longer period on the same basis.
"There is no dispute that the engines were delivered to defendant and taken to Simms, La., where his construction work was in progress, and that they remained there or at Alexandria until after the expiration of the four months period covered by the contract, and that shortly after the expiration of this period, in pursuance of some arrangement made in St. Louis early in June, 1908, they were taken to Alexandria, La., for attention, and thereafter returned to defendant, in whose possession they remained until they were taken back to plaintiff's plant at Atlanta, Ga., some time in November or December, 1908. There is also no dispute that no payment has been made by either party to the other on account of any of the claims covered by this suit. These claims are as follows:
"(I) By the plaintiff: (P-1) Rental at the rate of $345 per month for each of these engines from the time they left Atlanta until they arrived there on return, with an allowance of four days free of rental for the trip from Atlanta to Simms. (P-2) The repayment of the money expended by it for returning the engines from Simms to Atlanta, which amount it claims to have been $486. (P-3) Damages, beyond usual wear and tear, to the engines, for $258.64 on engine 618 (L. J. Smith 110), for $112.02 on engine 627 (L. J. Smith 111), and for $294.60 on engine 625 (L. J. Smith 112), or a total of damage on all three engines of $665.26. (P-4) Expenditure in June, 1908, for repairs made at Alexandria under the supervision of George Bird, and for his salary and expenses while so engaged, in the total sum of $749.70. (P-5) Interest at 6 per cent. per annum from April 19, 1909 (the date of service on defendant in this case) to this date, upon each of the above items, except claim (P-3) for damage.
"(II) By the defendant: (D-1) Return of expenditures made in bringing the engines from Atlanta to Simms, in setting them up in running order at Simms, in making test trips, in repairs on engine 627 (L. J. Smith 111) at Alexandria, in taking down engines, and in watching while on siding at Simms. The total of this claim is $902.84. (D-2) Interest on the above sum at 6 per cent. per annum from November 1, 1908, to this date.
"In the statement of the above claims the court has omitted such as the state of the pleadings and the evidence does not justify submission to you, and you are instructed that your findings must be on the above claims and on those alone.
"Regarding the right to recovery upon the above claims, you are instructed that the plaintiff's right to recovery upon any of its claims depends in the first instance upon your finding upon the proposition following: It was a part and condition of said contract that the engines had, when they were hired, been overhauled and were in first-class operative condition, and were suitable for construction work in Arkansas and Louisiana. By `suitable for construction work in Arkansas and Louisiana' is meant that they were capable of doing the kind and amount of construction work (including hauling ballast) which engines of that character would do, and under the conditions ordinarily surrounding the use of such engines in that kind of work at those points. Therefore, if you find from the evidence that said engines, or any of them, had, when hired, been overhauled and were in first-class operative condition, and also that, when delivered into defendant's possession, they were in such condition that if from that time properly cared for and set up they were or would have proved suitable for use in construction work as above defined, your finding should be for the plaintiff at the rate of $345 per month for such locomotive from the date it left Atlanta until it was returned thereto, with a deduction of four days for the going trip, and on claim (P-2) for the repayment of any expenses which you find from the evidence were expended by plaintiff in returning said engine or engines from Simms to Atlanta, not exceeding the amount claimed, $486.
"If, however, although you may find that the engines complied with the requirements set forth in the paragraph next above this, yet if you also believe from the evidence that, at the St. Louis meeting, plaintiff, as a condition precedent to the further use of the engines, and as an inducement necessary to procure their further use, agreed to repair said engines, or that the parties at that time agreed upon any changes in the terms upon which the engines would be retained, then your finding for rental, if any, should cover only the period of four months, with four free days allowed on the trip to Simms from Atlanta.
"If you find for the plaintiff as above set forth, and also find from the evidence that there was on such engines damages beyond the usual wear and tear and the reasonable usage of said engines within the terms of the contract, you should find for plaintiff for such sum, not exceeding the amount claimed for the respective engines in claim (P-3).
"If you should find for plaintiff as set forth in the third paragraph next above this, and should also find from the evidence that defendant, in June, 1908, at St. Louis, requested plaintiff to have repairs made upon such engine under its supervision, you should find for plaintiff on claim (P-4) for any such expenditure shown by the evidence to have been so made under the supervision of George Bird, and for his salary and expenses, if any, while so engaged, not to exceed the amount claimed, $749.70. If, however, you should find from the evidence that such services were not furnished at the request of defendant with the understanding that he would repay the same, but were furnished as a condition precedent to the further use of the engines by defendant, as an inducement necessary to procure this further use, or that there were at the St. Louis meeting any changes agreed upon by the parties in the terms upon which the engines should be retained, then your finding upon that claim should be against the plaintiff, as those services, if any, would have been furnished under another and different contract than that here invoked.
"If you should find for plaintiff on any of the claims as above set forth, you should add thereto, in compliance with claim (P-5), interest at the rate of 6 per cent. per annum from April 19, 1909, the date of service on defendant in this case, to this date, except upon claim (P-3) for damage, upon which claim no interest can be allowed.
"If, however, you should find from the evidence that the engines were not in accordance with the contract, as above defined and explained, you should find against the plaintiff and for the defendant on plaintiff's claims.
"Regarding the counterclaim, your finding should be as follows: If from the evidence you find the engines furnished were in accordance with the contract as above set out and explained, you should find against the defendant upon his counterclaim; but if you find the contrary, and also that defendant made expenditures and incurred liabilities in bringing the engine from Atlanta to Simms, and setting them up in running order at Simms, and making test trips, in making repairs on engine 627 (L. J. Smith 111) at Alexandria, in taking down the engines and in watching them while on the siding at Simms, you should find for him upon claim (D-1) for the total of such sum, if any, not exceeding the amount claimed, $902.84; and if in addition you should find from the evidence that defendant demanded the payment of such sum from plaintiff upon November 1, 1908, you should add to such finding, if any, on (D-1), interest
at the rate of 6 per cent. per annum from November 1, 1908, to this date."
