Rackliff v. Coronet Construction Co.

WHITE, P. J. Defendant appeals from a $5,000 judgment in favor of plaintiff in his action for damages arising out of the bailment of two DW-21s, rubber tired motor scrapers, valued at about $30,000 each. The agreement between the parties was admittedly a “bare rental” at $2,000-monthly for each of the scrapers beginning June 13, 1955, defendant to hire and pay certain operators, and to pay plaintiff’s oiler for four [421]hours daily for oiling the machines. After the end of the first month, $4,000 rent was paid by defendant and the use of the scrapers was continued.

It is alleged in the complaint and found to be true that “by the terms of said oral agreement of hire . . . said motor scrapers were not to be used in rock . . . and were to be returned to plaintiff at his Lincoln and Manchester Yard in the same condition in which they were received, reasonable wear and tear excepted . . that defendant “used said motor scrapers continuously, commencing on June 13, 1955, and continuing to and including July 26, 1955, and that on July 27,1955, defendant. .. notified plaintiff that it no longer needed said motor scrapers and . . . tendered to plaintiff a check for the rental thereof in the approximate amount of $1,300 as rental for the period from July 13, 1955 through July 26, 1955, and . . . told plaintiff the location of said motor scrapers and demanded that plaintiff call for them”; that plaintiff refused said tender and demanded that the motor scrapers be returned to his yard “in as good condition and repair as when received by the defendant . . . reasonable wear and tear excepted . . . that defendant . . . failed and refused to comply with any and all of said demands and that plaintiff took possession of said motor scrapers on or about August 1,1955, caused them to be repaired on the first, second and third days of August, 1955, and that plaintiff returned said motor scrapers to its own use and service on August 4, 1955”; that plaintiff paid $80 for transporting said scrapers to its own yard; that the agreed rental from July 13th to August 1st was $2,451.60; that the reasonable value of the use of said motor scrapers for the period from August 1st to August 3d, inclusive, was the further sum of $387.10; that defendant “during the period July 13, 1955 to July 26, 1955 did not take proper care of said motor scrapers and used the same on rock with the result that the water pumps thereon were damaged, the head on one of the two motor scrapers was cracked . . . the seals and gaskets on both motor scrapers were damaged, the cutting bits were completely worn down and ruined, the tires were badly cut and torn, the rotor bits were broken and worn, the motors were damaged, the step on one motor scraper was bent alongside the machine, the belly pan on one motor scraper was bent up to the crankcase, the engines were difficult to start and missed, the water line on one motor scraper was broken, both motor scrapers built up