The plaintiff corporation leased to the defendant ten fire extinguishers upon an agreed rental, to be paid at stated times.
The alleged agreement is in the nature of a request, upon a printed form prepared by the plaintiff, signed by defendant and addressed to the plaintiff, requesting the latter to place in defendant’s premises the fire extinguishers, for which defendant agrees to pay a stipulated sum semi-annually in advance, and to “ hereby lease same for a period of five years from this date, subject to the conditions endorsed upon the back hereof, which are hereby made a part of this contract.”
On the back of the order there are nine enumerated conditions, some of them providing for inspection on the part of plaintiff and exemption of plaintiff from liability in case the extinguishers are out of order and fail to operate, or in case of any damage resulting therefrom.
Subdivision 6 reads as follows: “ If damage be done to company’s property, the subscriber shall pay to the company the value of the property so damaged or destroyed, or the cost of repairing the same.”
It does not appear that the plaintiff signed the agreement, and all the “ conditions ” appear to be for the benefit and advantage of the plaintiff. »
A fire occurred after" business hours upon defendant’s premises, and so far as the record discloses, -without- negligence on its part, and destroyed the fire extinguishers.
In an action brought by the plaintiff upon the foregoing state of facts for the value of these fire extinguishers, judgment was rendered against the defendant.
The defendant was a bailee for hire, and the bailment being reciprocally beneficial to both parties, the bailee, in the absence of a special agreement to the contrary, would be required to exercise only ordinary diligence and would be answerable for only ordinary neglect.
*560It is also well settled that a bailee “ in the absence of a special agreement, is not an insurer of the chattel entrusted to his care and is not responsible for losses resulting from dangers necessarily incident to its use nor from inevitable accident or irresistible force.” 3 Am. & Eng. Ency. of Law (2d ed.), 746, 747.
While it is undoubtedly true that the parties may by express agreement enlarge the liability of the bailee, yet it is equally true, that the courts will not interpret the contract unfavorably to the bailee, beyond the obvious scope of its terms. Ames v. Belden, 17 Barb. 513. The" case last cited quotes with approval from Story on Bailments that a covenant to insure “ does not appertain to contracts of bailment, and if superadded it should only be by clear and explicit agreement.”
It must therefore be conceded that unless the defendant became an insurer under the sixth “ condition,” printed on the back of the order the judgment should not stand.
It is a well recognized doctrine in the law of bailments that the liability of the bailee shall be predicated upon the property being in existence, so that if delivery became impossible the bailee is excused. Young v. Leary, 135 N. Y. 569; American Preservers’ Co. v. Drescher, 4 Misc. Rep. 482; 54 N. Y. St. Repr. 268.
It now becomes necessary to interpret the meaning of the language employed in the sixth “ condition.” In so doing, it. may aid us to recall such rules of interpretation, as may be applicable here;
In case of contracts the courts have applied the rule of construction most strongly against the party using the words. Paul v. Travelers’ Ins. Co., 112 N. Y. 479.
Another rule of construction that is of value here is that the terms of the contract “be construed in the light of all the surrounding circumstances under which they were used, and necessarily affecting their signification, in order more perfectly to understand the intent and meaning of the parties.” Pitney v. Glens Falls Ins. Co., 61 Barb. 340.
Bearing in mind the principles of law referred to, we are led to inquire into the meaning of the words used in the sixth “ condition.”
Did not the plaintiff really intend to hold defendant liable for acts of damage only, against which plaintiff could not guard and *561which the defendant, as the controller of the premises where the fire extinguishers were to be placed, might prevent %
It might well be that the plaintiff intended to make the defendant liable for more than ordinary negligence.
But the crucial inquiry is, did the parties intend that the defendant shall be liable for injury or destruction of the apparatus, while on these premises,.no matter how carefully the defendant conducted himself respecting it ? In other words, was the defendant an unqualified insurer of the chattels ? The clause reads: “ If damage be done to company’s property, etc.” Does not this imply, if damage be done through the negligence of defendant or his servants ? Xo special significance need be given the word “ destroy,” in this connection, because if defendant was an insurer, he was liable to plaintiff for any damage done to the articles. The word “ destroyed ” was evidently merely intended as an amplification of the word “ damaged ” and should be construed in conjunction with the preceding words.
Construing the language of the instrument in its popular sense, did not plaintiff mean, when it said “ if damage be done to the company’s property,” damage done by defendant or his agents ? Was it contemplated to include a case of damage by fire, not occasioned by defendant or its agents ?
Was it not intended to cover the case of damage to the property against which the plaintiff could not protect itself ?
Plaintiff could certainly have insured the extinguishers.
The law will not hold the defendant liable as an insurer, unless this intention is explicitly expressed in the contract. There is also an implied condition of the continued existence of the thing bailed.
If it was intended to overcome these rules- of law the contract could have expressly stated that the defendant is liable for loss by fire; or some other comprehensive language might have been employed to make the bailee liable for any injury that may occur to the property, no matter how occasioned.
The articles in question were intended to be used to extinguish fire. Is it likely that it was contemplated between the parties, that if the extinguishers of fire were themselves to be extinguished by a fire, without any carelessness on the part of defendant, that the latter was to be responsible for their value.
I do not think that this was the intention of the parties, nor *562that the language used can be fairly said to express such intention, bearing in mind that to make the defendant as bailee, an insurer, the language must be clear and certain.
The judgment should be reversed and a new trial ordered."
Judgment affirmed, with costs.