Pneumatic Scale Corp. v. Ideal Cocoa & Chocolate Co. , 1915 Pa. Super. LEXIS 392 ( 1915 )

Opinion by

Ksphart, J.,

Giving to the defendant the benefit of every reasonable intendment fairly arising from the affidavit of defense and from the contract sued upon, we do not believe the affidavit sufficient to prevent a summary judgment. Plaintiff sued to recover for four months’ rent for a chocolate weighing machine. Defendant urges that the machine had been warranted by the bailor to weigh at a specified speed and accuracy during the term of hiring; that it became worn out, impossible to repair, was dismantled, and out of commission, boxed up, and awaiting shipping instructions from the plaintiff. The written contract provided that a test of the machine should be made and if it weighed within one-sixteenth of an ounce at a speed of twenty-four packages per minute, the machine was to be accepted upon the terms and conditions set forth in the contract attached to plaintiff’s statement. The test was made satisfactorily to the defendant. The provision for this test did not create an implied warranty that the machine should continue as tested through the life of the bailment. It was merely the initiatory step upon the success of which the contract was made. The machine was to be kept up to this standard of efficiency through the acts of the bailee, who was required “to keep the machine in good order and condition, to procure of the lessor or its agents all parts for repairing same and to insert such parts at the lessee’s own cost and charge.” The machine would only do the amount of work in a certain time with a given accuracy by the bailee performing his part of the contract just recited. Through this neglect the machine became unfit for use. It had been rented in 1906 for three years, to continue for successive terms of three years unless sixty days’ prior notice of a contrary intention were given, The contract was twice renewed and it is at the closing of the third period this difficulty arose. The learned judge correctly holds that the affidavit “only alleges as a defense, that the machine was worn out, and antiquated. It was the duty of the defendant to repair the machine. It could get such parts as were worn out, provided they were necessary to make repairs. If all parts were worn out, it could get all, and thus have a new machine. If, therefore, the machine was worn out, it was the defendant’s duty, according to the lease, to repair it, replacing as we have said, any or all parts that were worn out or useless. That the plaintiff sent a mechanic to do this does not excuse the defendant from performing his duty of repairing the 'machine, as he had agreed to do in the contract. That it was antiquated is no defense, as there is nothing in the lease that excuses the defendant from performing his agreement to pay the rental because the machine should become antiquated.” The affidavit does not state that the special representative of the plaintiff directed the machine to be dismantled, nor could the representative have terminated the lease. Such action was required to be in writing, signed by the general manager. While the bailor impliedly warrants that the thing hired is of a character and in a condition to be used as contemplated by the contract of bailment, yet, where the parties by an express contract reduced to writing regulate the conditions under which the hiring takes place, this writing will become the rule by which their rights against each other are determined: Lance v. Griner, 53 Pa. 204.

Judgment affirmed.