APPEAL from a judgment of the Superior Court of the County of Maricopa. Joseph S. Jenckes, Judge. Judgment reversed and cause remanded, with directions.
Messrs. Baker & Whitney, for Appellant.
Mr. Luther P. Spalding and Mr. Floyd M. Stahl, for Appellee.
McALISTER, C. J.
This is an action by Schmidt-Hitchcock Contractors, a corporation, against Charles H. Dunning in which it seeks to recover $1,180 as rental for an Ingersoll-Rand portable compressor and [38 Ariz. 361] $1,000 as damages for injuries thereto as a result of defendant's alleged failure to take proper care of it while in his possession. From a judgment in its favor for $399.51 rendered upon the verdict of a jury the plaintiff appeals.
It appears from the complaint that the defendant hired the compressor from the plaintiff for the period, April 30, 1927, to November 27, 1928; that he promised to pay therefor $150 per month, or a total of $2,680, and that only $1,500 of this sum had ever been paid though demand for the balance, $1,180, had been frequently made. It is alleged further that the value of the compressor when hired by defendant was $2,500 but that it so deteriorated while in his possession that plaintiff was damaged in the sum of $1,000, a result brought about by the fact that defendant took so little care of it that its crank-case and water pump were broken, its motor jacket cracked and other parts of it injured beyond reasonable wear and tear.
The answer denies specifically each allegation of the complaint and alleges that defendant rented the compressor to be used only from November 4, 1926, to December 31, 1926, for $250 per month, but that he found the latter part of December he would have need for it from the last day of that month to May 1, 1927, and upon plaintiff's being advised of this it agreed to reduce the rental to $150 per month for these four months; that by reason of still further need for it the defendant continued in its possession to November 28, 1928, without any express agreement as to the rental charge therefor; that during this entire period defendant paid plaintiff as rental $225 for part of November, 1926, $150 for December, 1926, and the further sum of $2,150, or a total of $2,625, a sum in excess of the agreed and reasonable value of the rental for this period.
[38 Ariz. 362] The answer avers further that at the time of hiring, the compressor was old, worn, used and of a value not in excess of $1,750; that while in his possession, due to this condition, it repeatedly broke down and became incapable of use without any fault on his part; that by reason of these break-downs and the constant delay in repairing the same it was not fit for or capable of use for three and one-half months but that plaintiff, though often asked to do so, made no credit allowance or deduction whatsoever therefor; that by reason of its old, worn and used condition and the break-downs resulting therefrom he was compelled to and did furnish labor to repair it and did purchase and install parts therein at his cost, all to his damage in a sum exceeding $1,000, and that no part of this has been paid or credited to defendant though often demanded; that by reason of these facts defendant denies that he is indebted to plaintiff in any sum whatsoever.
It appears from the testimony of defendant
that he called at the office of plaintiff the latter part of October, 1926, and asked the person in charge if plaintiff had a compressor to rent and was advised by him to get in touch with Mr. Schmidt. He did so later that day by 'phone and was told that plaintiff had several compressors out but that one of them would be in from the Mt. Pleasant Dam in a few days and that when it came in the plaintiff would be glad to rent it to him. Some days later he called and was told that it had been returned but that it was in such bad shape it could not be sent out without being overhauled, which would take several days. Mr. Schmidt thereupon inquired of defendant if he could wait and he replied that he could and asked what the price would be. After learning that he only wanted it for a short time, or until about January, 1927, Mr. Schmidt told him it ought to be worth $250 a month and he agreed to take it at this price. Several times during the next [38 Ariz. 363] few days defendant called back at the office to find out if it was ready and finally, on November 4, 1926, it was, and he sent a truck to take it out. It appears further from his testimony that he told Mr. Schmidt at the time that he was going to use the machine at the Buckeye Mine, fifty-six miles west of Phoenix, and advised him fully as to the character of the work he wanted it to perform there.
Early in December and after he had used it for a month he informed Mr. Schmidt that he would need it until some time in April and that, in view of this longer period of use, he thought the rental ought to be lowered. Mr. Schmidt told him that he would advise him later and did so by sending a bill for the second month, December, for $150 instead of $250, and from then on all statements were for $150. On July 15, 1927, after the machine had been used by defendant for eight months at the Buckeye Mine, he moved it to the Copper Basin Mine near Prescott, Arizona, and there continued to use it until November 28, 1928, when he returned it to plaintiff in Phoenix.
During the nearly twenty-five months it was in his possession he made various repairs on it, which he claims were extraordinary, and at the trial was permitted over the objection of plaintiff to introduce evidence showing the nature of these repairs and the amount expended therefor, $650.49, and the number of days the compressor was shut down to make them, 64 1/2, which he said entitled him to an additional credit to $330. It appears, however, that he made no complaint regarding the condition of the compressor nor any suggestion that plaintiff make the repairs or that he be reimbursed for any portion of them until August 7, 1928, after he had been using the compressor for twenty-one months and that he then merely asked for "some adjustment on the rental." In this state of the evidence the jury was instructed that it could allow a set-off for the two items claimed [38 Ariz. 364] to the extent of their total, $980.49, but not in excess thereof, provided it found that the compressor had been shut down and the repairs made as claimed and that there did not then prevail in the trade or business of leasing or renting machinery in the community in which the contract was made a custom whereby the bailee bears the expense of such extraordinary repairs, and it is apparent that a portion of this, $780.49, was allowed by the jury because this is the difference between $1,180, the amount plaintiff was seeking to recover as rental and which defendant admitted on cross-examination was correct if he were not entitled to a set-off, and $399.51 which the jury said by its verdict was due by him.
The plaintiff contends that a set-off was not allowable under either the pleadings or proof and its appeal is based on this proposition. The first two assignments challenge the ruling permitting the introduction over its objection of evidence bearing on this question. The defendant, it says, was allowed to introduced proof of warranties, express and implied, regarding the condition of the compressor, when none had been alleged, and of the cost of repairs thereon. The answer does not, it is true, contain an allegation of express warranty, but the record fails to disclose that such proof was offered except that the secretary-treasurer of the plaintiff-corporation did testify on ...