
    CONSOLIDATED LAUNDRIES CORPORATION v. THE UNITED STATES
    [No. 48802.
    Decided June 8, 1954]
    
      
      Mr. Jacob J. Rudner for tbe plaintiff. Messrs. ' Jacob Landau and Myron P. Gordon were on the briefs.
    
      Mr. Carl Eardley, with whom was Mr. Assistant Attorney 'General Warren E. Burger, for the defendant.
   Jones, Chief Judge,

delivered the opinion, of the court:

The defendant on March 15, 1943, leased from, plaintiff' the Mayflower Laundry in New York City and used the-laundry through April 30,1946.

Plaintiff sues for alleged damage to stored equipment, the alleged cost of relocating the stored equipment, and alleged damage to the equipment in use. The total amount claimed is $169,668.45.

Defendant denies all liability and asserts that in no event, should plaintiff be permitted to recover in excess of $994.50,. which is the value of certain items of machinery which apparently were lost during the period of the storage and lease-operation.

The property was what is known in the trade as a family-style laundry and had been in operation for a considerable- . period. The defendant leased the plant including the equipment. It was stipulated in the lease contract that the Government should have the right during the existence of the-lease to make alterations, attach fixtures, erect additions,, structures or signs in or upon the leased premises, and that at the end of the lease period the Government should have-the right to remove the additional fixtures which it may have installed.

The reason for a provision of this type was that the Government desired to use the'laundry to meet military requirements. This made it necessary to change from a family to a. bulk or commercial type laundry. The plaintiff had operated the laundry on a single-shift basis. The defendant used three shifts and operated the laundry 24 hours daily*.

Attached to the lease contract was an inventory prepared jointly by plaintiff and defendant describing the condition of each piece of machinery and equipment included in the list.. -There were notations of “good”, “fair” or “poor” in connection with these items. “Poor” meant less than 60 percent of normal efficiency; “good” and “fair”-meant not exceeding" 85 and 75 percent of normal efficiency, respectively. Many of the items, being of obsolete design or primarily suitable for a family-style laundry were of no utility in defendant’s-contemplated use of the plant. It therefore removed much of this machinery from the plant and stored -it; other parts-of the machinery were relocated within the plant. Some of the wooden accessories such as tables, bins and shelving were torn down and some of the lumber used in making sorting bins of different specifications.

The materials that were stored consisted primarily of manufactured piping, shirt and collar dryhouses, blanket and curtain dryers, shirt and garment presses, starching machines, collar machines, roller conveyors and numerous wooden accessories such as tables, bins and racks.

The plaintiff contends that in the remodeling process the defendant destroyed much property, injured other items of machinery, neglected the machinery while in storage, permitting it to rust and deteriorate, and handled the entire matter in such a way as to make the removed machinery practically useless, and that it abused the machinery that remained in such a fashion as to cause great damage thereto, all of which defendant categorically denies. Much of the testimony is conflicting, and to some extent confusing, but in going over the entire record certain facts emerge rather clearly which bear upon the numerous issues made by the plaintiff.

Before discussing the various issues that have been raised it will help to clarify these issues by calling attention to the fact that the plaintiff and defendant executed a supplemental agreement, dated January 19, 1947, by the terms of which ■defendant waived its right to remove the machinery which it had installed at its own expense in changing from a family to a commercial type laundry and which under the terms of the original lease it had a right to remove, and in return for the title to such property the plaintiff released the defendant from any and all claims or liability arising out of the entire transaction, except that the plaintiff reserved any claims resulting from damage to lessor’s machinery either by the removal of the machinery or any damage to the machinery for which the defendant might be legally liable.

This supplemental agreement narrows the issues considerably, since it removed from the items claimed any damage that may have been done to the plant or building.

There was considerable damage to the property that was removed during the period that it was in storage. The •nature of this damage is summarized by the trial commi3-.sioner in finding 8, which we have adopted. The commissioner has concluded from the evidence presented that the -damage over and above reasonable and ordinary wear and tear to plaintiff’s machinery and equipment, not including •the washing machines, extractors and panel control board, •caused by defendant’s use or storage of the machinery, was '■$7,401. The plaintiff complains that the total damage on •this item should have been more than $53,000, while the defendant claims the damage was altogether negligible. Our •commissioner saw the witnesses face to face, and we are constrained to adopt his findings as they are reasonably supported by the evidence. We find that the value of the machinery was reduced by $7,401 on account of the excess ■damage above that attributable to ordinary wear and tear.

There were certain items of missing machinery and equipment, the reasonable market value of which is $994.50.

The reasonable cost of relocating the equipment at the original location at the termination of the lease would have been $5,550, including the reinstallation of manufactured piping and electric connections which defendant had disrupted and removed. The plaintiff claims that it is entitled to recover this amount; in fact, the plaintiff asserts that the amount should be larger. It is true that the defendant under the terms of the original lease agreement obligated itself to replace the machinery that had been removed as nearly as possible in the exact location at which it was originally found. This was not done.

There is no doubt plaintiff would be entitled to recover this amount according to the terms of the original lease contract. However, the undisputed evidence shows that defendant installed a large amount of new machinery in converting the plant; that it had the right under the original lease to remove this machinery at the end of the lease. As a consideration for the waiving of all claims against it with the exception of the damage caused to the machinery, the defendant transferred the title and ownership of all the new machinery which it had installed to the plaintiff.

Undoubtedly the plaintiff would have a right to the cost of relocating the old machinery or accepting the title and ownership of the new machinery that had been installed. It had what is termed in baseball parlance a fielder’s choice. It chose to accept the new machinery. Having done so it waived the other claims except the additional damage to the machinery. As a matter of fact, if plaintiff had insisted on the defendant’s carrying out its original obligation it would'have been necessary to remove a large part of the newly installed machinery which would not only have been expensive, but would have interrupted the operation of the plant. Plaintiff saw fit at the end of the lease to continue operations not as a family-type but ás a commercial-type laundry. Having made its choice it certainly should not have the advantages of both without the obligations of either.

Plaintiff would be entitled to the cost of restoring the wired-in enclosure which defendant removed from the garage and in which a mechanics’ shop was located but for the fact that, as we construe the supplemental agreement, this obligation was settled in the transfer of many thousands of dollars’ worth of property to the plaintiff under that agreement.

The plaintiff also claims damages to the washing machines which were shown by the attached inventory to be in fair condition, with certain exceptions. However, the evidence ‘shows rather clearly that the defendant spent some $18,000 in conditioning the washing machines and extractors, and that it employed a maintenance crew at all times during the lease period. ■ We adopt the commissioner’s finding that the washing machines were returned by the defendant to the plaintiff at the termination of the lease in at least as good condition as they were at the beginning of the lease, reasonable and ordinary wear and tear excepted. We make the same finding in connection with the extractors which plaintiff claims were damaged to the extent of several thousand dollars.

There was some damage to the automatic panel control board which is an electric apparatus that starts and stops the washing machine motors and also causes the cylinders in the machines to reverse direction periodically during the washing cycle. One • such board attached to the building served all the washers on the washroom floor of the plant. Defendant’s' continuous operation of the plant on a 2- and 3-shift basis caused abnormal depreciation- on the board’s contact points and resistors and further damage was occasioned on account of defendant’s inability to secure replacements for badly worn parts. This in addition to the overloading of the washing machines caused permanent damage to the board. Our commissioner has found from the evidence that the amount of this damage above normal wear is the :sum of $2,500, this being the amount necessary to compensate for the damage in excess of reasonable and ordinary wear and tear. While the evidence is not clear as to how much of the damage was due to ordinary wear and tear and how much to excess above ordinary wear and tear, we would be inclined to find this item for the plaintiff but for the fact that the supplemental agreement by virtue of the transfer of title to the machinery stipulated that all claims as to damages to the property and plant were discharged. There might be some doubt as to whether this item, attached as it was to the building, became a part of the building or whether it was included in the machinery items excepted from the release if we look at the wording of the exception alone. However, if we examine the entire document we find in the preliminary part of the document the following:

WHEREAS, the lessor is willing in lieu of the performance of physical restoration of the entire building on said demised premises, together with restoration of elevators and main electric panel board located therein to accept said government-owned property and improvements * * *. [Emphasis supplied]

'Thus the main electric panel board was specifically included •as one of the items damages to which were released and discharged as a part of the consideration for the transfer of ■the title to the government property.

The plaintiff attempts to escape the effect of this specific inclusion by stating that that provision referred to the separate small board that controlled the elevators. We cannot •accept this interpretation. Undoubtedly the panel board that controlled the 21 washing machines and extractors and other washing machinery was the main electric panel board. It was clearly the main board, the one to which most of the ^damage was done and about which most of the evidence on that point was taken; in fact, little damage was shown to have been done to the small panel board. The plaintiff undertakes to construe the release as applying to the panel board attached to the elevators because the term panel board is used in the same clause in which elevators are mentioned-To interpret the language as plaintiff would have us interpret, it would require a finding that the smaller panel board was. located in the elevators. When the entire paragraph is read as a whole, it becomes clear that the reference is to the main-electric panel board located within the building. That seems-to us to be the proper construction of the language. For this, reason we hold that the damage to the main electric panel: board was included in the terms of the release.

Plaintiff is entitled to recover the sum of $8,395.50.

It is so ordered.

Laramore, Judge; Madden, Judge; Whitaker, Judge;- and Littleton, Judge, concur.

FINDINGS OE FACT

The court, having considered the evidence, the report of' Commissioner C. Murray Bernhardt, and the briefs and argument of counsel, makes findings of fact as follows:

1. Plaintiff, a Maryland corporation, owns and operates 16 laundry plants in the metropolitan area of the city of New York. One of its plants located in the city of New York, was known as the Mayflower Laundry at all times material-to this action. This laundry was in active operation prior-to March 15, 1943, and the equipment had been in regular-use up to that time.

2. By lease dated March 15, 1943, the Mayflower Laundry-(hereinafter “plant”), including the equipment therein, was-leased by plaintiff to defendant and was thereafter occupied and operated by defendant as an army quartermaster laundry through April 30, 1946. The lease was terminated on-April 30,1946, pursuant to notice of cancellation duly served-upon plaintiff as provided by the lease. An inventory attached to the lease, prepared jointly by plaintiff and defendant, described and defined individually the condition of each-piece of machinery and equipment included in the lease. The-condition of each piece of equipment in the inventory (with some exceptions) was noted as “good,” “fair,” or “poor.” These terms were defined in the inventory as follows:

Good: Mechanically complete. Operating to efficiency and safety standards of manufacturer.
Fair: Functions but needs minor adjustments or small replacements to meet efficiency and safety standards of manufacturers.
Poor: Less than 60% of normal efficiency.

3. The lease provided:

7. The Government shall have the right, during the existence of this lease, to make alterations, attach fixtures, and erect additions, structures, or signs, in or upon the premises hereby leased, which fixtures, additions, or structures so placed in, upon, or attached to the said premises shall be and remain the property of the Government and may be removed or otherwise disposed of by the Government. The Government shall surrender possession of the premises upon the expiration or termination of this lease and, if required by the Lessor, shall, prior thereto return the premises in as good condition as that existing at the time of entering upon the same under this lease, reasonable and ordinary wear and tear and damages by the elements or by circumstances over which the Government has no control, excepted; provided that, if the Lessor requires the return of the premises in such condition, the Lessor shall give written notice thereof to the Government at least twenty (20) days before the expiration or termination of the lease, said notice to specify the exceptions of the Lessor to the then existing condition.

4. The lease further provided:

16. That portion of paragraph 7, supra, which required restoration, shall apply only to the building and the Government shall not be required to restore any of the personal property, machinery, or equipment. Except that any of the machinery and equipment which has been re-located by the government shall be moved back, so far as possible, to the location occupied by the said machinery at the time of the commencement of this lease.

Plaintiff’s letter transmitting the executed lease to defendant stated:

We are allowing this matter to be consummated ip this way despite the alteration in the lease which would. permit damage to machinery beyond ordinary wear and tear without any liability being placed upon the government to restore it to its original state at the time the army entered the plant.

5. During defendant’s occupancy of the plant it employed all of the operating, supervisory, and maintenance personnel, of whom many had, prior to the lease, worked for plaintiff in the same plant. The supervisory personnel employed by defendant to manage the plant during the lease period were competent and experienced in that field.

6. Prior to March 15, 1943, plaintiff had operated the plant on a single-shift basis, or about 9y2 hours daily. During the period of the lease defendant increased the number of shifts and for a period operated on a three-shift basis 24 hours daily, paying a proportionately increased rent therefor.

7. Upon taking possession of the plant defendant proceeded to convert it from a family-style laundry theretofore operated by plaintiff to a bulk or commercial-type laundry to meet military requirements. Many items of equipment were either of obsolete design or were designed primarily for a family-style laundry and were of no utility in defendant’s contemplated use of the plant. A large quantity of such equipment, including substantially all of that located on the second floor and some on the third and fourth floors of the plant, was removed from the plant by defendant and stored. Other machinery and equipment was transferred and relocated within the plant. Many wooden accessories, such as tables, bins, and shelving, were knocked.down and destroyed, some of the salvaged lumber being used in making sorting bins of different specifications, tailored for the Army’s special requirements.

8. a. The equipment and machinery which was removed from the plant and stored consisted primarily of manufactured piping, shirt and collar dryhouses, blanket and curtain dryers, shirt and garment presses, starching machines, collar machines, sock forms, shaping machines, roller conveyors, and numerous wooden accessories, such as tables, bins, racks, and similar items. In disconnecting the equipment attached to pipes defendant smashed the unions and elbows, but this method of severance was economically justifiable.

b. The place of storage of the machinery, equipment, and those wooden accessories not destroyed was on the second floor of a building (hereinafter “warehouse”) across the street from the plant which was leased separately by defendant for that purpose. The removal to the warehouse was performed with reasonable care to prevent damage. Because of limited storage space equipment was stacked and layered in piles, with reasonable care being exercised to prevent damage. Many of the larger pieces of equipment, such as dryhouses, and blanket and curtain dryers, were disassembled by defendant prior to storage, and reassembly at the conclusion of the storage period would have been difficult and, in some cases, either impossible or economically unfeasible. Due to. lack of adequate protective measures rust accumulated on the metal surfaces of some pieces of equipment during storage, but it was not excessive and was removable. The warehouse was dry throughout the lease period but was unheated for approximately the first half of that period. During the storage period defendant’s employees had frequent access to the stored materials and removed miscellaneous parts from equipment — mostly presses — to replace similar parts in operating equipment in the plant. No records were kept or replacements made of the parts borrowed. In the course of time the equipment in storage was frequently disturbed and damage ensued. The damage consisted in general of distortion, rusting and breaking of metal sheets which were parts of dismantled dryhouses, woolen blanket dryers and curtain dryers, warping and breaking of roller conveyors and heads, legs and bucks of some presses, and miscellaneous damage to various wooden accessories. Much of the stored equipment, particularly the presses and dryhouses, was of an obsolete style and plaintiff would have had no use for it. Most of the stored equipment was designed for use in family-style laundries and little was useful in commercial or bulk-style laundries.- Plaintiff operated several family-style laundries elsewhere at. all times material to this action, although upon repossessing the Mayflower Laundry in 1946 plaintiff operated it as a bulk or commercial-style laundry. A termination inventory of. the equipment in storage was not completed until after the termination of the lease on April 30,1946.

c. In 1945 the equipment stored on the second floor of the warehouse was moved down to the first floor.

9. Sometime during the six weeks prior to April 30,-1946, defendant transferred the stored equipment from the warehouse to the garage on the ground floor of the plant. The equipment was carefully transported by means of a forklift truck, dollies and hand trucks and was unloaded on the garage floor in an orderly manner. It was then checked against the original inventory. Certain metal parts of drying rooms and tables were damaged in the course of this move.

10. a. Shortly before and after April 30, 1946, defendant’s representatives checked the equipment and machinery both in the plant and in storage on the ground floor against the original inventory and reported the items missing from the original inventory and the value thereof, bút did not report damage to items which had been stored. During the same approximate period plaintiff’s representatives made a similar check against the original inventory and reported both missing items and items of damage to some of the equipment and machinery. Included in plaintiff’s inventory of allegedly missing items were items that were relocated, damaged, or in storage in the plant garage, but not actually missing.

i. From the evidence presented it is reasonable to conclude that damage over and above reasonable and ordinary wear and tear to plaintiff’s machinery and equipment (excepting that to washing machines, extractors and panel control board) caused by defendant’s use and/or storage of the same was $7,401. It is not completely ascertainable from the record which of the damaged items had been damaged in storage and which had been damaged while in use in the plant. The reasonable market value of the items of machinery and equipment missing from the inventory at the termination of defendant’s occupancy was $994.50. Plaintiff claims $53,163.30 for damaged and missing equipment,

11. a. Upon repossession of the plant by plaintiff on April 30, 1946, defendant made no effort to reinstall in their original locations in the plant the items of equipment which had been removed from storage and laid out on the ground floor of the plant garage. Eeassembly of certain items of dismantled equipment for restoration to original locations would not have been possible because parts were missing and other parts were either bent or had lost their identity. Moreover, defendant had installed its own machinery on the third .floor of the plant and elsewhere at locations previously occupied by some of plaintiff’s equipment that had been removed and stored, and plaintiff later acquired and operated defendant’s machines without disturbing their locations. However, prior to its acquisition and on May 18,1946, plaintiff notified defendant that it was going to disconnect government-owned machinery in the plant to make room for equipment necessary for plaintiff’s resumed operations. This equipment was not moved and formed the consideration later for a release of liability by plaintiff to defendant (finding 17, infra). While plaintiff used some parts of the stored presses for replacements on presses in actual use, all of the balance of the stored equipment was disposed of by plaintiff to a junk dealer at an undisclosed price, if any, except for 21 presses and 3 double-sleeve forms which were sold for salvage by plaintiff. No bids were obtained by plaintiff preliminary to the sale of salvaged items, although obtaining bids would have been plaintiff’s normal practice. The amount realized ($1,650) has been considered in reporting herein the amount of damage (finding 10 b, supra). Plaintiff gave defendant written notice in advance of its intention to so dispose of the stored equipment and there is no record of opposition by defendant to this proposal.

:5V The reasonable cost of reinstalling the equipment at the original location.at .the termination of the lease, would have been $5,550, which includes $1,900 for reinstallation of manufactured piping and electrical connections which defendant had disrupted and removed. Such reinstallation would have been useful only in connection with the operation of a family-style laundry and would have been wholly unsuited to the operation of a commercial-type laundry.

12. In addition to damaged or missing items, defendant removed from the garage of the plant a wired-in enclosure which had been erected there by plaintiff prior to the lease for use as a mechanics’ shop. Defendant did not restore the enclosure upon vacating the premises and plaintiff thereafter replaced it at the reasonable cost of $394.

:. 13. Part of the machinery and equipment leased to and used and operated by defendant consisted of 21 washers, 13 extractors, and one automatic panel control board.

• 14. a. A washing machine of the type included in the inventory consists principally of a perforated metal cylinder within a solid metal shell. The cylinder is divided into pockets by metal partitions and material to be washed is inserted into these pockets through doors which are then closed and latched. The cylinder revolves within the shell on a shaft at either end. The shafts rest on cast-iron frames and rotate on bearings. There is a one-half inch to one inch clearance between the cylinder walls and the surrounding shell, depending on the size and type of the washing machine.

b. Each washing machine bears a manufacturer’s label prescribing the rated loading capacity of the particular washer, i. e., the maximum dry weight of clothing which it is designed to launder at one time for satisfactory results. Overloading a washing machine beyond its rated capacity,- which is a common but not recommended practice- in. laundries, results in an inferior wash but does not cause undue damage to the machine.

. c. At times during defendant’s operation of the plant its employees would load and operate the washing-.machines considerably in excess of their rated capacities, accomplishing this by means of inserting and wetting down dry clothes in repeated operations until the cylinder pockets .-were full of wet wash. Defendant’s employees also slammed-the cylinder doors forcefully shut and collided laundry trucks-;against the sides of the machines which were, however, prótéctéd by bumper guards. It is not considered that these methods of operation of washing machines varied appreciably from customary usage in the trade. During a portion of. defendant’s occupancy of the plant it employed 30 to 40 Italian prisoners-of-war to load and unload (but not to operate) the washing machines and extractors. The quality of their services was comparable to the average of the -other employees, and the evidence does not establish that they unduly abused the machines. - - -

• d. Defendant employed at all times a maintenance crew to- keep the washing machines and extractors in operating condition. They performed minor repairs, adjustments, lubrication, and ordinary maintenance. At the- same timé defendant hired The American Laundry Machinery Company, a competent sales and service organization, which performed major repairs and did extensive overhauling of many of the washing machines and extractors throughout the period of defendant’s occupancy. Repairs to the washing machines and extractors during the lease period .were more--frequent than theretofore, but this was principally ■attributable to the fact that defendant operated the plant moré continuously during each twenty-four hour period than had plaintiff previously, running as many as two and three .eight-hour shifts daily.

e. The original inventory attached to the lease listed five of the-washing machines as being in “fair” condition, and -the-balance of them were not placed in categories of “good”, “fair,” or “poor,” but specific deficiencies were noted against each separate machine. During the first year of the lease .period defendant paid The American Laundry Machinery ■Company at least $18,000 to condition the washing machines and extractors for operation, a small but unascertainable portion of which was to remedy conditions accruing during defendant’s operations in the first year of the lease period. During plaintiff’s first year of resumed operation after termination of the lease it spent $5,768.78 in repairs to the washing machines and extractors, in addition to paying for the services of its maintenance personnel.

/. The washing machines were returned by defendant to plaintiff at the termination of the lease in at least as good condition as that existing at the commencement of the lease, •reasonable and ordinary wear and tear excepted. Plaintiff claims damage to the washing machines in the amount of $60,450.

15. a. An extractor of the kind included in the original inventory attached to the lease is a machine used to extract moisture from washed material by means of concentrical motion. The wet washed material is placed in an inner perforated metal basket. This basket is surrounded by a solid cast iron housing. At the base of the basket is a shaft. This shaft sits into a “V” bearing. The bearing is housed by a solid metal curb, which is cemented into the concrete floor. The basket is covered by a lid. The perforated basket revolves at speeds from 500 to 750 revolutions per minute.

b. Each extractor bears a manufacturer’s label prescribing the rated loading capacity of the particular machine. Overloading does not damage an extractor if the load is properly balanced. Overloading minimizes the likelihood of an unbalanced load. An unbalanced load will create an eccentric rotation of the basket which, if permitted to continue in operation, not only impairs and damages the bearings, spindles, basket sides, and foundation, but also creates such an intolerable vibration and noise that operating personnel would naturally stop the motor immediately. Underloading an extractor is more likely to result in an unbalanced load.

g. At times during defendant’s operation of the plant its employees would stand on the lids of extractors in order to force wash into the extractor baskets. This was not a standard practice with defendant. It would normally tend to result in the cracking of the lids and the soiling and tearing of clothes, but would not harm or affect the operating mechanism. Repair or replacement of extractor lids is a minor matter. The record does not disclose the cost of such repairs. Three extractor lids were in cracked condition at the termination of the lease. Several lids were missing at the commencement of the lease. At times defendant’s employees would load extractors unevenly which would cause an unbalanced load, but in such cases the loads were removed and repacked and the evidence does not establish that the extractors were permitted to remain in operation while unevenly loaded. Defendant’s employees habitually loaded the extractors to the top, but this is an accepted practice in the trade.

d. The original inventory attached to the lease listed 15 extractors, 2 of which are not involved in this claim. Of the remaining 13 extractors, 6 were listed as being in “good” ■condition at the commencement of the lease and 7 were not placed in any of the categories of “good,” “fair,” or “poor,” but adjustments were noted to be needed to each. At the termination of the lease the extractors were returned to plaintiff by defendant in as good condition as that existing at the commencement of the lease, reasonable and ordinary wear and tear excepted. Plaintiff claims damage to the extractors in the amount of $7,400.

16. An automatic panel control board of the type included in the original inventory attached to the lease is an electrical apparatus connected to the washing machines which not only starts and stops the washing machine motors but also automatically causes the cylinders in the machines to reverse direction periodically in the washing cycle. One such board served all the washers on the washroom floor of the plant. Defendant’s continuous operation of the plant on a two- and three-shift basis caused abnormal depreciation on the board’s contact points and resistors, and further damage was caused by defendant’s inability to secure parts to replace badly worn parts. This, plus overloading of the washing machines which necessitated more rapid replacement of resistors and accelerated the wearing out of contact points, caused permanent damage to the board. At the commencement of the lease the board was in “good” condition as denominated in the inventory with the lease. At the conclusion of the lease it had deteriorated beyond reasonable and ordinary wear and tear. During the first year of resumed operation of the plant by plaintiff after termination of the lease, plaintiff expended $3,651.65 in repairs to the board. While it cannot be accurately stated what portion of this sum would represent normal wear, it is reasonable to conclude that $2,500 would compensate plaintiff for damages caused by defendant in excess of reasonable and ordinary wear and tear.

17. Supplemental Agreement Number 4, dated January 19, 1947, and executed by the parties October 28, 1947, released defendant from all liability arising from its failure to discharge its lease obligation for physical restoration of the plant premises in exchange for enumerated equipment belonging to defendant and installed in the plant, which equipment defendant transferred to plaintiff. The supplemental agreement (including a limitation therein on the scope of the release) provided in part—

■ WHEREAS, on the 30th day of April 1946, subsequent thereto and continuing thereon to the present date, comprising a period of approximately nine (9) months, the parties hereto have been unable to mutually agree upon either the extent or the cost of restoration required in accordance with the terms of said lease;
WHEBEAS, at the present time, it is. physically impossible for the Government to exercise its right to perform required restoration as a result of the use and occupancy of the premises by the Lessor together with repairs and alterations made to the 'said--premises by the Lessor since the date of termination of said.lease;
WHEBEAS, it has been administratively, determined to be advantageous and in the interest of. the Government to relinquish, transfer, and'deliver to the Lessor the title to certain Government-owned property and improvements, which are no longer required by the Government, in lieu of physical restoration of. the entire building on said demised premises, ¡together with restoration of elevators and main electric panel board located therein, and
WHEBEAS, the Lessor is willing in lieu of the performance of physical restoration of the entire building on said demised premises, together with- restoration of elevators and main electric panel board located therein to accept said Government-owned property and improvements ;
NOW, THEBEFOBE, in consideration of the premises, the parties hereto do mutually covenant and agree as follows:
*****
3. That the Lessor, for and in consideration of the relinquishing and the returning by the Government to the Lessor of said leased premises, as hereinabove enumerated, and the receipt by the Lessor of all monies paid and acts performed by the Government under the obligation incurred by the Government, in connection with said lease and Supplemental Agreement thereto, and in consideration of the transfer by the Government to the Lessor of said improvements set forth, supra, and other good and valuable considerations, the receipt and sufficiency of which are hereby acknowledged, hereby remises, releases, and forever discharges and by these presents does for itself, its successors and assigns, remise, release and forever discharge the United States of America, its officers, agents and employees of and from any and all manner of actions, liability and claims which against the United States of America, its officers, agents and employees it or they ever had, now have, or ever will have upon or by reason of any matter, cause or thing whatsoever particularly arising out of said lease, Supplemental Agreements thereto and the occupation by the United-States of America of the said leased premises.
4. It being agreed and understood between the parties hereto that the above mentioned release does distinctly except and exclude any alleged claims that the Lessor has asserted or may have against the United States of America resulting from either damage to Lessor’s machinery, or by reason of the removal of machinery, by the Government, its officers, agents and employees from the premises of the Lessor, wherein same were located during the occupancy by the Government of the within demised premises, .and for which the Government may be legally liable, anything to the contrary in this instrument notwithstanding.

No evidence was adduced as to whether the foregoing release, in referring to plaintiff’s waiver of restoration of the main electric panel board as part of the consideration, contemplated the panel control board described in finding 16, supra, or to the panel board operating the elevators. From all the evidence, including the lack of mention as to the condition of the elevator panel board, it is reasonable to conclude that the release contemplated the panel control board described in finding 16.

CONCLUSION OK LAW

Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes that as a matter of law the plaintiff is entitled to recover, and it is therefore adjudged and ordered that it recover of and from the United States eight thousand'three hundred ninety-five dollars and fifty cents ($8,395.50).  