ANDERSON, Presiding Judge.
This is a suit to recover for damage to a certain machine leased by plaintiff to defendant under a written rental-lease agreement. The trial below resulted in a verdict and judgment for plaintiff in the sum of $2,500. Defendant has appealed.
The Mil-Kay Orange Corporation of America and J. F. Lazier Manufacturing Company were originally joined as defendants, but the cause was dismissed as to said defendants at the close of plaintiff's case.
The evidence discloses that in 1929 plaintiff, Clarence B. Brockett, and one Church, conceived the idea of manufacturing a bottle top which could be removed, from a bottle without the use of an opener. This was accomplished by so constructing the bottle top as to leave a small extension or lip sticking up on one side of the cap which could be lifted or titled, with the result that the cap could be removed. Machinery for the manufacture of these caps was designed and made. This machinery, in addition to special die presses, included an "assembler" or "corker" which would insert a cork disc in the bottle cap or crown and then seal it in said crown by gas heating and pressure so that there would be no leakage when the crown was attached to the bottle.
Although other machinery was included in the lease, it is the specific "assembler" which is involved in this litigation.
Originally the machinery mentioned was owned by the Tilt-Top Cap and Closure Corporation, but at the time of the lease declared on in plaintiff's petition, plaintiff was the sole owner. The machinery had never been put to commercial use prior to its lease to defendant, and had been stored in various places since about 1932.
Defendant, Natural Set-up Sales Corporation, was, in 1942, and for many years prior thereto, engaged in the manufacture and sale of extracts which were sold to bottlers throughout the country. During the war years it became difficult for defendant's customers to obtain bottle caps because of shortage of materials. For that reason, defendant's officers decided to go into the business of manufacturing bottle caps to supply its customers during this period of shortage. Negotiations were thereupon entered into between representatives of defendant company and plaintiff for the rental of the machinery in question. These negotiations resulted in an agreement entered into on August 16, 1942, between plaintiff, as trustee for the Tilt-Top Cap and Closure Corporation of America, and defendant. This contract provided for the renting by defendant of all the machinery and equipment set out in Schedule "A", attached to said contract, at a fixed rental for a period of five years. The contract further provided that: "Upon termination hereof, First Party will return to Second Party all of the machinery and equipment listed on Exhibit `A' in the same condition as received, except for ordinary wear and tear." Pursuant to this agreement, and at some date shortly after August 16, 1942, the assembler in question, with the other items listed in the contract, was delivered at plaintiff's direction from Morgan Hauling Company in St. Louis, where it had been stored for quite some time, to defendant's premises at 3010 Locust Street, St. Louis, Missouri. The assembler was then installed in the basement of defendant's building at the above address, and defendant began using it in the manufacture of bottle caps.
On October 1, 1943, fourteen months after the installation of the assembler on defendant's premises, a new agreement was entered into between plaintiff, who was then the sole owner of the machinery, and defendant. This contract also contained a provision that: "Upon termination thereof, First Party will return to Second Party all of the machinery and equipment listed herein in the same condition as received, except for ordinary wear and tear." Plaintiff's suit is based on this second contract.
At the time the assembler was delivered there was a shortage of cork, which was the customary material used as a liner for bottle crowns. Defendant thereupon substituted paper discs for cork and, by reason thereof, made certain changes in the assembler. These were the changes which plaintiff claims decreased the value of the machine.
Plaintiff testified that the assembler, at the time it was delivered to the defendant, was in workable condition, and that it had been greased and oiled every ninety days while in storage in order to keep it in that condition. He further testified that when it was returned to him in April, 1946, it had been changed considerably. He stated:
"The shaping and feeding device was taken from one end and moved to the other. The chute that fed the crowns into the assembler had been cut off flat with the surface, evidently done with a hacksaw, as it was one inch steel, one by three. And the circular rotating part, the large rocker arm in there had been welded tight, which threw the thing all out of balance for anything that I might want to use it for. And the timing gear had been changed. * * *
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"Q. You say you had built this particular assembler? A. That's right.
"Q. Do you have knowledge of other assemblers, other makes? A. Yes.
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"Q. Will you state what the reasonable value of that piece of equipment was, that is, the assembler now, around October 1, 1943? A. I would say $3750.
"Q. Now, what was its value when it was returned to you? A. Well, only for parts.
"Q. How much was it worth? A. I got $250 for the parts.
"Q. You sold it for parts purposes only? A. That's right.
"Q. * * * During the period they used that equipment would it suffer any natural wear which you would make allowance for as between $3750 and that $250? A. I would say it would be fair to allow $1,000 for wear and tear."
Plaintiff further testified that the changes made by defendant did not constitute ordinary wear and tear.
Martin Mueller, a witness for plaintiff, testified that he had been employed by the defendant for fifteen years; that he and plaintiff checked in all the items covered by the contract when they were delivered to the defendant; that all of it was in fair condition, none rusty or broken; that he helped assemble the machinery; that he was there when the machinery was re-delivered to plaintiff, and helped check it out; that there had been quite a few changes in the equipment between the time it came in and the time it was turned back to the plaintiff; that the defendant had taken off pulleys, cut a rail on the machine, and welded each plunger on the machine; that a track on the machine was cut and an extension put on; that when it was returned to plaintiff the forty-five plungers were welded tight and the track and pulleys had not been replaced.
William Hrach, a tool and die manufacturer, testified for plaintiff that in 1946 it would have cost approximately $3037.33 to make forty-five plungers to replace the plungers which had been welded on the machine during the time it was in defendant's possession.
Defendant's witness Fitzgerald testified that at the time the machine was delivered it required considerable adjusting in order to make it suitable for the purpose for which it was leased; that "timing had to be made correctly and apparently there were a lot of parts, of course, that were missing, especially for our purpose; so we made parts. There was an awful lot of timing to the thing. Of course, we had to make adjustments so the machine would work, because it wasn't for the standard crown; it was for the Tilt-Top Crown." He further testified that the machine had been in storage for a long time and "it was a re-working job from the beginning."
Defendant's witness Morris Jones testified that: "we received the machine, the Tilt-Top machine, which was obsolete at the time we got it, and we tried to make it work during the wartime shortage, and we weren't successful with it; we worked day and night with the thing — was awfully hard to work." He further testified that the company finally stopped using the machine because they could never make it work successfully, and bought another piece of equipment which could be used for the purpose of making crowns, at which time the use of plaintiff's assembler was discontinued.
Defendant's witness Fitzgerald testified that at the time plaintiff's machine was delivered some parts of it were off; that it was dirty and had to be oiled and cleaned up; that there was no gluing attachment on the machine, and defendant had considerable difficulty inserting discs in the crowns so the plungers had to be changed. He stated that the plungers were shaking loose and falling off, so that it became necessary to correct this condition as the machine was not usable for the defendant's purpose at the time of delivery, and that at the time it was returned to plaintiff the parts were all there and could have been put together, and the machine restored to the same condition as it was when received.
Plaintiff gave the following testimony on cross-examination:
"Q. Isn't it a fact, Mr. Brockett, whatever changes were made in this machinery were all made prior to October 1, 1943? A. That, I couldn't say.
"Q. Don't you know, Mr. Brockett, these changes were made along in the fall of 1942, and then there were some more changes made, but there were no changes made after the date of this contract of October 1, 1943? A. That, I don't remember."
Plaintiff's witness Martin Mueller, a former employee of defendant, testified that after the assembler was delivered to defendant by the Morgan Hauling Company it was put in the basement of defendant's building, and that immediately attempts were made to operate it. He further testified:
"Q. And then immediately you began to run into trouble with it? A. That's right.
"Q. So immediately, then, you began to make changes on these different parts to use it for the purpose of making bottle caps? A. That's right.
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"Q. So it was just immediately after the time that it was delivered down there to the Locust Street plant that you began to run into trouble in trying to operate this machine. That is correct, isn't it? A. Yes.
"Q. As soon as you ran into these troubles, then you and somebody else in the plant there would try to correct the trouble and put it in shape? A. That's right.
"Q. that probably went on for a period of eight or nine months? A. I don't know; quite a while.
"Q. About eight or nine months, you would say? A. Yes.
"Q. And then they stopped using the machine, didn't they? A. We stopped using it for quite a while.
"Q. You mean eight or nine months after they first had it down there before they stopped using it? A. Somewhere around there.
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"Q. * * * And then afterwards, when they couldn't use it, then the Natural Set-Up Sales Corporation got another assembler — bought one from some place else — and used that for the purpose of making bottle caps? A. Yes.
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"Q. After they bought the new assembler, then they didn't use the old assembler any more? A. That's correct.
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"Q. And, not using it, they didn't make any more changes in it? A. That's right."
Edward N. Fitzgerald testified for defendant, as follows:
"Q. * * * Now, Mr. Fitzgerald, do you recall whether a new assembler was purchased? A. Yes, I do.
"Q. Do you recall when these changes were made, when the last changes were made on this machine of Mr. Brockett? A. Oh, quite a little while before the new assembler came in.
"Q. When did the new assembler come in. A. That was shortly before I left.
"Q. When was it you left? A. That was in September, 1943.
"Q. So the new assembler had been purchased before you left the company in September, 1943? A. Yes. I had helped set that machine up, also.
"Q. And then had all the changes been made on this other assembler of Mr. Brockett? A. Yes, we had just about given up on that machine.
"Q. So all the changes had been made prior to the time you left the employ of the company? A. That's right, yes."
It is urged by appellant that the court erred in refusing to direct a verdict for defendant at the close of plaintiff's case, for the reason that plaintiff produced no evidence that the damage to the machine in question, which resulted from the changes made, occurred subsequent to October 1, 1943. Determination of this question involves an interpretation of the meaning to be given to the following provisions of the contract, viz.: "Upon termination thereof, First Party will return to Second Party all the machinery and equipment listed herein in the same condition as received, except for ordinary wear and tear."
If the parties intended, by the use of the language employed, to impose on defendant an obligation to return the machinery in the same condition it was when defendant received it in August, 1942, the court properly denied the motion for a directed verdict, for it is clear that the damage to the assembler was inflicted after said date and prior to its return to plaintiff in 1946. But, if the provision in question imposed an obligation on defendant to return the machinery in the condition it was in on October 1, 1943, the court should have sustained defendant's motion for a directed verdict, for there is no evidence in the record that the changes were made subsequent to that date — hence, no evidence that the machine in question was not returned in the same condition it was in on October 1, 1943.
Notwithstanding the fact that we might, considering the situation of the parties and the facts and circumstances surrounding the execution of the contract, reasonably construe said contract as imposing upon defendant an obligation to return the property in the condition it was in when delivered in August, 1942, we cannot do so in the face of a contrary construction placed upon the instrument by plaintiff himself. By his pleadings, his evidence, and his instructions, plaintiff has construed the contract as requiring defendant to redeliver the property to him in the condition it was in on October 1, 1943.
Plaintiff brought suit on the contract of October 1, 1943. He alleged in his petition that, pursuant to said contract, he delivered the machinery to the defendant, and that defendant retained the equipment until on or about April 1, 1946; that by paragraph five of the said contract defendant obligated itself to return to plaintiff all of the machinery and equipment in the same condition as received, except for ordinary wear and tear; that when the machinery and equipment was returned to plaintiff it had been made practically valueless, except for scrap, in that the defendant had dismantled the assembler and had changed the power control on the assembler with a resultant change in timing; had changed the feed mechanism, and had removed the crown releasing mechanism and replaced it with a different type; had welded the roller plungers which operated in the circular drum; and had cut off the crown inserting mechanism. It was then alleged that the difference between the reasonable market value of the machinery and the equipment at the time it was delivered to defendant, and at the time it was returned to plaintiff, was $2500. Judgment was prayed for in said amount.
When it came to the introduction of evidence in support of his claim for damages, plaintiff gave evidence of the reasonable market value of the machine in question as of October 1, 1943, and its reasonable market value in April, 1946.
By Instruction No. 1, given by the court at plaintiff's request, the jury were told that if they found and believed from the evidence that plaintiff and defendant entered into a written contract dated October 1, 1943, under the terms of which plaintiff rented to defendant certain machinery and equipment, and if they further found "that defendant took said machinery and equipment into defendant's possession pursuant to said agreement and later returned it to plaintiff, and if you further find that when the machinery and equipment was returned to plaintiff any of it was not in the same condition as when received by defendant, except for ordinary wear and tear, then you will find for plaintiff under Count No. 1 of plaintiff's petition." (Emphasis ours.)
By Instruction No. 5, given by the court at plaintiff's request, the jury were told that if they found for plaintiff they should assess his damages in such sum as they found was "the difference between the reasonable market value of the machinery and equipment at the time it was delivered to the defendant and at the time it was returned to plaintiff, except for ordinary wear and tear, such amount not to exceed the sum of $2500 however."
Ordinarily, unless there is some rule of law positively forbidding it or precluding its adoption, the courts will follow the interpretation placed upon a contract by the parties themselves, as shown by their acts and conduct. Coleman v. Ford Motor Co., 195 Mo.App. 554, 193 S.W. 866; Velvet Freeze, Inc., v. Milk Wagon Drivers' and Inside Dairy Employees' Union et al., Mo.App., 177 S.W.2d 644; Restatement of the Law of Contracts, Sec. 235. Plaintiff, by a solemn admission in his pleading, and by his testimony and instructions submitted, has construed the contract as imposing on defendant the obligation to return the property to him in the condition it was received under the contract of October 1, 1943. Such being the case, we feel compelled to adopt the same construction.
As heretofore stated, there is no evidence in the record that the changes were made in the assembler after October 1, 1943; hence there was a failure on the part of the plaintiff to show that the machine was not delivered to him by defendant, in April, 1946, in the condition as it was when received by the defendant under the contract sued on. The evidence indicated that all of the alleged changes were made shortly after the delivery, under the contract of August, 1942, which contract was between plaintiff, as trustee for the Tilt-Top and Closure Corporation, and defendant, and before the execution of the contract of October 1, 1943.
Plaintiff's witness Mueller testified that defendant began having trouble with the machine immediately after it was installed, and that he or somebody else would try to correct the trouble; that this went on for a period of eight or nine months; that finally defendant purchased a new assembler and stopped using plaintiff's machine altogether; and that thereafter no more changes were made in plaintiff's machine.
Edward Fitzgerald, defendant's witness, testified that this new assembler was purchased before he left the defendant's employ in September, 1943, and that all the changes in plaintiff's machine had been made prior to that time.
Since plaintiff failed to show that the machine when delivered to defendant, under the contract sued on, was as originally constructed, there is no room for any presumption as to when the change or damage occurred, as in ordinary bailment cases.
We believe that defendant's motion for a directed verdict should have been sustained. The judgment is reversed.
HUGHES and McCULLEN, JJ., concur.