HUTCHESON, Circuit Judge.
Brought against Defense Plant Corporation, Reconstruction Finance Corporation, as successor to its liabilities, Arthur G. McKee and Company, American Rolling Mill Company, and Sheffield Steel of Texas, the suit was for the value of a steam hoist which had been rented to the Defense Plant Corporation and destroyed by fire. The rental agreement, which was entirely written, contained the following provision:
"On the termination of the rental term of any item of the Equipment, Contractor will return the same in as good condition as when delivered at the job site, usual and ordinary wear and tear excepted."
The plaintiff claimed that this provision enlarged the common law obligation of the Defense Plant Corporation, as bailee, to use due care, and made it in effect an insurer. It made the additional claim that the loss by fire was caused by the bailee's negligence.
The defenses were: (1) That the contract did not enlarge, it merely made express, the implied common law obligations of the bailee; (2) a denial that the bailee was negligent; and (3) the defense of the two year statute of limitations of Texas.
The case was tried to the court without a jury on a stipulation and on evidence, and the judge found that "the destruction of the machinery by fire was proximately caused by the negligence of Arthur G. McKee and Company, Agent for the Defense Plant Corporation, in negligently subjecting such machinery to unusual fire hazards without adequate or sufficient fire protection." He, therefore, concluded: (1) That Defense Plant Corporation became liable to plaintiff for the value of the machinery on April 2, 1943, the date the same was destroyed; and (2) that plaintiff's suit was, within the meaning of the four year statute of limitations,
The appellant is here insisting that the judgment must be reversed because: (1) The written contract relied on did not enlarge Defense Plant's common law obligation as bailee; (2) there was no proof of negligence on its part proximately causing the loss by fire; and (3) if there was liability, the loss occurred on April 2, 1943, the suit was not brought until more than two years thereafter, and it is barred.
Appellee, as vigorously insisting that the contract imposed absolute liability for the safe return of the hoisting machine, and that if it did not, the finding, that the loss was caused by Defense Plant's negligence, is fully supported, urges that the judgment should be reformed by the allowance of interest, and, as reformed, affirmed.
We agree with appellant that the contract provisions relied on to enlarge Defense Plant's liability as bailee do not
A great deal has been written on the subject of the enlargement by special contract of the common law liability of a bailee, and there is a difference of opinion as to what form of words will suffice. It will serve no useful purpose to discuss the authorities here. It is sufficient to say that while some cases have held that the use of language such as that relied on by appellant will enlarge the common law liability of bailee, the great weight of authority is to the effect that such a clause merely sets expressly out what a common law bailment implies, and does not add anything to it. The authorities cited in the margin
On the issue of limitation, appellant and appellee argue with great vehemence. We think there is little basis for argument. It is settled law in Texas that the action for debt with which the four year statute deals is a much broader action than the technical common law action of debt. As construed by our courts, it covers many kinds of obligation so that it is the rule and not the exception that actions in Texas for money judgments are, generally speaking, actions for debt, and that the two year statute, where there is no writing, and the four year statute, where the action is founded on or evidenced by a contract in writing, apply to them. It is also true that Texas courts have given a very liberal construction to the words "evidenced by or founded upon any contract in writing," and where a written contract furnishes the spring or basis of, as distinguished from the mere occasion for, the suit, the applicable limitation is the four year statute. Thus suits for damages arising out of contracts of carriage, whether brought in tort or expressly on the contract, are held to be suits arising out of, or founded on, a contract in writing and barred only by the four year statute.
We need not, though, determine whether the four year statute would apply here if the suit were merely on the implied obligation of a bailee to exercise due care in respect of property bailed. The suit here is directly on the contract which in terms obligates the bailee to return the property and in law obligates him to do so unless he has a defense to the suit. Such
Reformed and affirmed.
FootNotes
"1. Actions of trespass for injury done to the estate or the property of another;
"2. Actions for detaining personal property of another, and for converting such property to one's own use;
"3. Actions for debt where the indebtedness is not evidenced by a contract in writing."
"1. Actions for debt where the indebtedness is evidenced by or founded upon any contract in writing." Vernon's Ann. Civ.St.Tex. art. 5527, subd. 1.
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