17 A. 278 (Conn. 1889), Shoninger v. Peabody

Citation:17 A. 278, 57 Conn. 42
Opinion Judge:LOOMIS, J.
Attorney:J. O'Neill and C. A. Colley, for appellants. S.W. Kellogg and J. P. Kellogg, for appellees.
Case Date:January 04, 1889
Court:Supreme Court of Connecticut

Page 278

17 A. 278 (Conn. 1889)

57 Conn. 42




Supreme Court of Errors of Connecticut.

January 4, 1889

Appeal from district court of Waterbury; BRADSTREET, Judge.

Assumpsit by Simeon B. Shoninger and another against Frederick O. Peabody for the price of a piano. Judgment for plaintiffs, and defendants appeal.

Page 279

J. O'Neill and C. A. Colley, for appellants.

S. W. Kellogg and J. P. Kellogg, for appellees.


The plaintiffs have been for many years dealers in musical instruments at New Haven, with a branch store at Waterbury, which from 1880 to October, 1886, was under the sole charge and management of one Henry R. Day, the general agent of the plaintiffs. Day was paid a regular salary, and received in addition a commission on all sales made by him for the plaintiffs. While acting as such agent he sold from the store in Waterbury one of the plaintiffs' pianos to the defendant for the agreed price of $300, which was agreed to be paid for wholly by certain commissions that might become due from Day to the defendant on future stock transactions between the defendant and Day on his private account. The defendant had been for a considerable time engaged in the business of a stock-broker, and as such had had previous dealings with Day. The plaintiff had no actual knowledge of the sale of the piano until after Day had left their employment. He had reported to them that the piano was rented to the defendant. But the finding is explicit that the plaintiffs were informed of the terms of the sale after Day left their employ, and before the bringing of this suit. The defendant earned commissions in his stock transactions on Day's account to the amount of $185, which were credited by Day on the piano account, but not paid over to the plaintiffs. In the year 1886 the defendant paid the plaintiffs several sums, aggregating $75, which is all the plaintiffs ever received towards the price of the piano. Day was a defaulter in his dealings with the plaintiffs to an amount exceeding $5,000.

The manifest wrong and injustice perpetrated upon the plaintiffs by the defendant and Day make us regret that the principles of law applicable to the remedy chosen by the plaintiffs are not flexible enough to afford relief. But the greatest good to the greatest number requires adherence to sound general principles, even though in a given case a party may fail in obtaining redress. The whole trouble in this case arises from a mistake as to the plaintiffs' remedy. When the plaintiffs were informed of the terms of the contract made by their agent for the sale of the piano to the defendant, they had an election to repudiate the arrangement, and, by tendering back what they had received in ignorance of the terms of the sale, and demanding the piano, they could have recovered it by an action of replevin, or obtained its value in trover. But, knowing the terms of the sale, they elected to sue in assumpsit on the contract for the agreed price, and thereby they affirmed the contract, and ratified the act of the agent, precisely as if it...

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