The opinion of the court was delivered, November 22d 1869, by
Read, J. —The plaintiffs were the owners of a large refining works on the Ohio river, and had erected on their premises an oil tank for storing crude petroleum in the spring of 1865. It had iron sides and a wooden bottom, and held about 13,000 barrels of oil. Before it had been used by the plaintiffs, by a rise in the river, and the water getting under it, the bottom was injured and it could not be used without repairs. The ground on which it stood had been selected by the plaintiffs, and it turned out from its position and the nature of the ground it would leak more than such a tank when in good repair would leak. If the plaintiffs had undertaken to repair it they would naturally have done so by repairing the injury to the wooden bottom by strengthening it and putting it in the same condition as nearly as possible as it was when completed before the rise in the river. This they would have considered as putting the tank in perfectly good repair.
Instead of doing this themselves, on the 22d of January 1866 they leased it to the defendants for two years, and in lieu of rent the defendants agreed “ to put the tank in perfectly good repair and to leave it in the same condition at the expiration of the lease.” All that this would naturally mean, would be at the outside to put a new wooden bottom in, and then it would be as good as it ever was when originally finished for use by the plaintiffs. Repair means to restore to its former condition, not to change either the- form or the material. If you are to repair a wooden building you are not to make it brick, stone or iron, but you are to repair wood with wood.
In a suit therefore upon this agreement there would be two questions to be tried: 1st, was there a breach ? and 2d, what are the damages sustained by-the plaintiffs? The evidence on both sides of course would relate to these two points.
The plaintiffs’ theory was that perfectly good repair meant that if this could not be effected except by putting in an iron bottom, the defendants were bound to put in an iron bottom and thus *167make it a complete iron tank, when the original tank which was the subject of repair was intended by the plaintiffs to have only a wooden bottom, and was so built by them and ready for use but never tested by the plaintiffs, but believed by them to be entirely fitted for the purpose of storing crude petroleum. The lease was in fact of an iron tank with a wooden bottom.
The leak complained of was of water not oil, for in such tanks water is pumped in to prevent the leakage of the oil. The ground for alleging a breach of the agreement was the water leakage, and the material point of time in this respect was at the expiration of the lease when it was to pass into the possession of the plaintiffs.
The defendants immediately proceeded, at an expense of about $1000, to repair the bottom then in the tank. This proving insufficient, they employed another experienced tank-builder, who at an additional expense of about $2000 put in at their request an entirely new bottom, on top of the first one, and made it as tight and secure as it could be made with a wooden bottom.
The evidence of the declarations of Mr. O’Hara and of his presence whilst the repairs were going on, as disproving the iron bottom theory and upon the question of damages was properly admitted, and so also the evidence of the repairs actually made, and their expense, was entirely pertinent not only on the question of any breach of the agreement but of the damages alleged by the plaintiffs.
Upon examining the charge and the answers • to the points assigned for error we do not find any error. The court explained the law and properly left the finding of the facts to the jury.
The counsel for the plaintiffs in error has not given the evidence bearing upon his exceptions and points, to enable us to judge of their applicability. To answer some of the points as requested by the plaintiffs would have been positive error, and in others the court were called upon to decide matters of fact, which is the province of the jury.
The error of the plaintiff’s contention was that he asked for more than the agreement called for.
Judgment affirmed.
Sharswood, J., dissented as to the admission of O’Hara’s declarations, and the answer of the court to the 4th point.