The opinion of the court was delivered by: MARSH
In this case, tried to the court without a jury, the plaintiff seeks to recover damages flowing from the defendant's alleged breach of a contract styled as a 'Trailer Interchange Agreement'.
The court makes the following:
1. Plaintiff is a corporation duly organized and existing under and by virtue of the laws of New Hampshire, and is a citizen of New Hampshire and the United States of America.
2. Defendant is a corporation duly organized and existing under and by virtue of the laws of Pennsylvania and is doing business in the City of Pittsburgh, Allegheny County, Pennsylvania. Defendant is a citizen of Pennsylvania and the United States of America.
3. The amount in controversy is a sum in excess of $ 3,000, exclusive of interest and costs.
4. On or about the first day of February, 1957, plaintiff and defendant, both of whom are engaged in the motor freight business, entered into a 'Trailer Interchange Agreement' which provided for exchanges of trailers between the parties, under specified terms and conditions, for transportation over the several freight lines of the parties.
5. On or about July 3, 1957, and under the terms of the aforementioned 'Trailer Interchange Agreement', plaintiff interchanged one of its trailers marked T87, being a 1956 Model 735MC-4D10 Strick aluminum closed top tandem semi-trailer, for a trailer owned by defendant and marked as No. 7231.
6. On the date of the interchange, plaintiff's trailer T87 was in good condition except for a small bruise on its front panel, which bruise did not materially affect the trailer's value.
7. The 'Trailer Interchange Agreement' provides, in its pertinent parts, as follows:
'1. The undersigned carriers enter into this agreement governing their relationship with respect to interchange of trailers; provided however, that no provision in this contract shall be construed to increase the legal liability of any party hereto.
'3. The carrier initially acquiring use of an interchanged trailer:
'3.5 Agrees to hold the carrier initially furnishing the trailer harmless for any loss or damage thereto * * * arising out of the use, operation, maintenance or possession of said trailer, or arising from any other cause, until said trailer has been returned to the carrier initially furnishing it.
'5. * * * In the event an interchanged trailer is damaged, * * * the carrier in possession at the time the damage occurred shall, by repair, restore it to the condition in which it was received, and in the event of failure of such carrier to make such ...