G.R. No. 11024. November 28, 1917
THE GOVERNMENT OF THE PHILIPPINE ISLANDS, PLAINTIFF AND APPELLEE, VS. MYER HARRIS, HUGO ROSEBURG, AND S. M. BERGER, DEFENDANTS AND APPELLANTS.
STREET, J.:
Court of First Instance of the city of Manila for the recovery of damages for an
alleged breach of contract. From a judgment in favor of the plaintiff the
defendants have appealed.
The contract sued upon was entered into by and between the plaintiff and
defendant Myer Harris. The other two defendants Roseburg and Berger are
interested only as sureties of Myer Harris.
The defendant answered denying the alleged breach of contract, and further by
way of counterclaim alleged certain breaches of the contract on the part of
plaintiff and asked for damages.
Briefly, the terms of the contract provided that the defendant should
superintend and conduct the “Service Halls” at Baguio for the Government during
the season of 1913, for the term beginning February 1 and ending June 30, 1913,
under certain conditions. The plaintiff on its part agreed to furnish in part
the Service Building with furniture, kitchen utensils, and other things
specified more particularly in the contract. A circular proposal, with
specifications, terms, conditions, stipulations, representations of facts, and
regulations as proposed by the plaintiff, are attached to the contract and
expressly made a part thereof.
The specification relative to the furnishing of the Service Halls is as
follows:
“The Service Halls will be furnished to the contractor by the Government free
of charge together with a complete equipment of kitchen utensils with which the
Government Mess was operated last year, tableware, linen, and furniture
according to inventory, which will be made a part of this contract. The
contractor will be responsible for preservation of the building and all
equipment shown on said inventory, and shall return same in as good condition as
when delivered, reasonable wear and tear excepted. Light and water will be
furnished to the contractor free of charge. Distilled water and ice may be
obtained from the Quarter-master, Camp John Hay, at a reasonable rate.
“The contractor shall be held liable for the cost of any articles lost,
stolen or damaged, and shall exercise every care and precaution to avoid
possible destruction of the building and other property by fire. A chemical
engine will be furnished the contractor free of charge.”
The breach alleged in the complaint is that when the term of the contract
expired the defendant Myer Harris failed to return sundry articles of equipment
which had been delivered to him, and which were specified in the inventory
attached to the complaint. These articles consisted almost entirely of
tableware, table linen, and fragile utensils for dining hall and kitchen. This
ware had also been in use during the prior season of 1912. It is admitted that
the defendant offered to return to the plaintiff the fragments of the articles
that had been broken while in his hands but they were rejected.
The first question for consideration is whether or not the articles mentioned
in the inventory marked Exhibit B, and entitled “Equipment shortage of Myer
Harris,” were in fact delivered to him by the Government at the time he took
charge of the Service Halls. Upon this point we find that the Government has
submitted as a part of its case, in an agreed statement of facts, an affidavit
made by said Harris in which he states the circumstances under which the
property was taken over by him. From this it appears that the contract for
running the Service Halls was awarded to him a very short while before he was
required to open the same for use. He was therefore forced to take over all the
equipment with great haste and upon the inventories submitted by the Government,
there being insufficient time for a proper or thorough check. On the other hand
when the property was returned to the Government the comparison with the
inventories was carefully made. The statement in question then adds, “It is
believed that the shortage noted is greater than it would have been had it (the
property) been returned in the same manner it was received.”
Whatever is believed by the parties to a stipulated statement of facts should
also be believed by the court, in the absence of a showing of manifest error;
and we are therefore inclined to suspect that at least some of the items in this
inventory of missing articles were not delivered to the defendant. It will be
noted, however, that the statement in question is vague and indefinite; and we
cannot accept it as sufficient to overcome the evidence found in the inventories
which were made out when the property was taken over by Harris.
The next question arises upon the interpretation of certain provisions
contained in the specifications already quoted relative to the furnishing of the
Service Halls. It is there declared that the contractor will be required to
return all equipment in as good condition as when delivered, “reasonable wear
and tear excepted.” The term “reasonable wear and tear” embodies, in our
opinion, not only the idea of deterioration from wear in use but also the idea
of accidental injury incident to the reasonable use of a thing for the purpose
for which it was designed. In Webster’s International Dictionary the term “wear
and tear” is defined as “the loss by wearing, as of machinery in use; the loss
or injury to which anything is subjected by use, accident, etc.” In the New
Standard Dictionary the same term is defined as “loss by service, exposure,
decay, or injury incident to the ordinary use of a thing.” Both of these
definitions embrace the idea of accidental loss or injury; and it is apparent
that the term is not limited to the simple idea of deterioration from use. In
fact, the expression in its most literal sense evidently embraces both the ideas
of deterioration and accidental damage. The word “wear” if used alone would
cover fully the idea of abrasion, erosion and deterioration as incident to use;
and the word “tear” evidently adds the idea of the tearing, rending, or breaking
of a thing which may be of fragile or breakable character.
If the provision relative to “reasonable wear and tear” had stood alone, the
interpretation of this contract would hardly have given rise to this
controversy. But it is insisted in this case that the defendants are to be held
liable for the shortage under that provision of the stipulation which says that
the contractor shall be held liable for the cost of any articles “lost, stolen,
or damaged.” From this it is argued that the exception as to “reasonable wear
and tear” must be taken to refer only to deterioration or abrasion from ordinary
use and that it does not include the case where things are accidentally broken
or otherwise damaged in course of ordinary use. The proper interpretation,
however, in our opinion is that the word “damaged” itself, as used in the
provision quoted above, is to be considered qualified by the exception as to
reasonable wear and tear, as if the words were “lost, stolen, or damaged
otherwise than by reasonable wear and tear.” This interpretation gives
legal effect to both provisions without deviation from their proper meaning and
it is the interpretation which appears to be approved as reasonable by common
sense. Experience teaches us that eating establishments, whether of a public or
domestic character, cannot be conducted without a certain percentage of breakage
and injury to the things used in dining room and kitchen. Moreover, it is
obvious that wear and tear of dishes and glassware does not result from erosion,
but only from accidental breaking. No other sort of “wear and tear” upon such
articles could possibly have been in the minds of the parties when they executed
the contract.
We therefore conclude that the defendants are not liable for breakage or
other accidental injury incident to the proper use of the articles listed in the
inventory while they were in Harris’s hands. Undoubtedly, however, the burden of
proof is upon him to show that the damage and shortage was due to causes
attributable to reasonable wear and tear. There is evidence in the record
showing that the shortage in this case is not excessive beyond the average
attributable to ordinary wear and tear in hotels and eating establishments; and
we believe that, with the exceptions noted in the last paragraph of this
opinion, the defendant has established that said shortage was due to this
factor. The things for which we hold him liable were, we believe, lost or
stolen; and as to these there is no sufficient proof that the loss was due to
ordinary wear and tear.
As to the three grounds of counterclaim set forth in the defendant’s answer
we are of the opinion that the Court of First Instance committed no error in
disallowing the same. The first ground of counterclaim was that the Government
had represented that distilled water and ice might be obtained from the United
States Quartermaster at Camp John Hay, at a reasonable rate; whereas, soon after
the defendant Harris assumed charge of the Service Halls, the Quarter-master
ceased supplying him with distilled water and ice, as a consequence of which he
was compelled to buy these supplies from the authorities of the city of Baguio
at a much higher rate than he had been paying to the Quarter-master. We hold
that the statements made by the Government in its proposal to the effect that
these articles could be obtained from the Quartermaster was given out as
information and was not a term of the contract. It appears that the Government
had no control over the action of the Quartermaster of Camp John Hay; and as the
withdrawal of this privilege is not chargeable to the Government in this case,
it cannot be held liable for the damage that may have resulted to Harris
therefrom.
The second ground of counterclaim is that the defendant suffered damage
because the number of boarders at the Service Halls fell below the estimated
number stated in the Government’s circular proposal. We hold that the
representation made by the Government as to the probable number of boarders was
a mere matter of opinion, and was understood to be in the nature of an estimate.
Consequently the Government cannot be held liable for the fact that expectations
as to the number of boarders were not fully realized.
The third ground of counterclaim relates to the fact that the period of time
during which the Government establishment was kept at Baguio during 1913 was
shorter than had been expected. In the proposal of the Government it was stated
that the Service Halls should be operated for the period of 5 months, or from
February 1 to June 30. It was also stated that subject to changes, the official
season was from February 10 to July 1, 1913. It appears in evidence that, in
this particular year, some of the Government Bureaus were withdrawn at different
times, beginning as early as the last week of May. We are of the opinion that
the representation of the Government as to the duration of the season was
understood to be given out merely as an estimate and in any event subject to
change. Therefore the Government is not liable for any damage that may have
resulted to the contractor by reason of the early withdrawal of the Government
establishment.
Proceeding to determine the liability of the defendants in conformity with
the opinion expressed above, we hold that Harris, upon the proof adduced, is
entitled to credit for all the things noted in the inventory of missing
articles, except the following: 2 axes (P3.28); 8 blankets (P16.81); 5
counterpanes (P18.35) ; 13 table-cloths (P49.75); 1 mattress (P9.39); 169
napkins (P70.36); 20 pillow cases (P10.81); and 9 sheets (P18.18). The total
value of these things, as shown by the inventory is P196.93. The judgment of the
court below will be modified, as above indicated, by reducing the amount of the
recovery to P196.93, and as thus modified the judgment will be affirmed, without
any special adjudication of costs of this instance. So ordered.
Arellano,
C. J., Torres, Johnson, Carson, and Araullo, JJ., concur.
MALCOLM, J., dissenting:
I agree with the judgment of the trial judge, the Honorable Simplicio del
Rosario. Where the majority decision is in error is, to my mind, in its mistaken
construction of two provisions of the contract entered into by the Government of
the Philippine Islands as party of the first part, and Myer Harris, as party of
the second part, with Hugo Roseburg and S. M. Berger as sureties. One clause
provides that “The contractor will be responsible for preservation of
the building and all equipment shown on said inventory, and shall return
same in as good condition as when delivered, reasonable wear and tear
excepted.” The interpretation of the well known phrase “reasonable wear and
tear excepted,” which does not make the lessee guarantee the continued existence
of the equipment, would be logical were it not for the words “return same in as
good condition as when delivered” and for the additional clause of the contract
that “the contractor shall be held liable for the cost of any article lost,
stolen,, or damaged.” The contract intended to convey that the contractor
should return all the equipment; that he was to be liable for the cost of any
article lost, stolen, or damaged, but that he was not expected to keep the
equipment up to standard because of natural deterioration or other cause. In an
English case, the phrase “reasonable wear and tear” was held not to apply to
total loss so as to exonerate the covenantor. (Anglin vs. Henderson, 21
U. C. Q. B. 27.)
At least, no compromise between the theories of the Government and the lessee
is possible. Either the contractor was to return all of the equipment or he was
to return only the equipment which was not missing.