æolian Co. of Missouri v. Boyd

• Court: Missouri Court of Appeals
• Writing for the Court: Bennick
• Citation: æolian Co. of Missouri v. Boyd, 65 S.W.2d 111 (Mo. App. 1933)
• Decision Date: 07 November 1933
• Docket Number: No. 22606.,22606.
• Parties: ÆOLIAN CO. OF MISSOURI v. BOYD.

65 S.W.2d 111

ÆOLIAN CO. OF MISSOURI v. BOYD.

No. 22606.

St. Louis Court of Appeals. Missouri.

November 7, 1933.

Rehearing Denied November 21, 1933.

Appeal from Circuit Court, St. Louis County; Julius R. Nolte, Judge.

"Not to be published in State Reports."

Action by the Æolian Company of Missouri against Mrs. Josephine Drake Boyd. Judgment for defendant, and plaintiff appeals.

Reversed and remanded.

Lee, Fricke & Lee, of St. Louis, for appellant.

Fordyce, White, Mayne & Williams, T. W. White, E. C. Hartman, Fred Switzer, Jr., and E. McD. Stevens, all of St. Louis, for respondent.

BENNICK, Commissioner.

This is an action for the unpaid balance due on the agreed purchase price of a piano. Plaintiff, the Æolian Company of Missouri, is, of course, the seller, and defendant, Mrs. Josephine Drake Boyd, the purchaser.

Defendant had been a customer of plaintiff for a period of twenty years, and at and prior to the time of the transaction involved in this proceeding was the owner of a Weber player piano which she had purchased from plaintiff at some time in the past. In June, 1930, defendant went to plaintiff's place of business and informed its representatives that she was desirous of purchasing a new piano. The extent to which she placed herself in plaintiff's hands, relying upon the judgment of its salesmen as to which piano would best answer her purposes, was an issue of fact at the trial. However, it does appear without any great amount of dispute that defendant at least made known her desire for an instrument of exceptional workmanship and tone qualities, and one adapted for the use of her eleven year old daughter while pursuing her studies on the piano.

Numerous pianos in stock, both straight and player, were examined by defendant, and finally a Weber Duo Art, priced at $2,765, was sent out to her home subject to her approval. This piano was shortly returned; and after some further negotiations, on June 14, 1930, defendant purchased the piano for the unpaid price of which she is now being sued. This was a Steinway Grand Duo Art piano, in an expensive walnut period case, the case alone being valued at some $1,500. The transaction was evidenced by a written agreement as of the date of purchase, disclosing an agreed purchase price of $4,875, subject to a credit of $608.75 as the trade-in allowance upon defendant's old Weber piano. As regards the terms of payment, the contract called for a cash payment of $500 on June 16, 1930, with the balance payable on or before October 1, 1930.

Though the contract itself indicates no such agreement and thus by the absence of the same negatives the idea that another agreement was made not contained therein, defendant testified that the actual agreement between her and plaintiff's representatives was that the piano was sold to her on approval as the Weber piano had been, her approval or disapproval to be given by the following October. Evidence of such a prior or contemporaneous agreement not expressed in the written contract was admitted by the court upon the theory that the presence in the case of defendant's plea of fraud took the situation from within the scope of the parol evidence rule, and rendered the evidence in question competent. However, in rebutting such testimony, plaintiff's evidence was that no such agreement had been made, and that in the very nature of things it could not well have been made in the case of the most expensive piano kept in stock.

In accordance with the terms of the contract, the payment of $500 was made upon the delivery of the piano, and two subsequent payments of $50 each were made, one on November 18, 1930, and the other on December 11, 1930.

Regardless of the claim of defects in the particular instrument sold to defendant, it was a conceded fact that Steinway pianos are generally recognized as being among the best and finest made, both as regards tone, workmanship, and durability. Plaintiff so represented the matter to defendant, and she made the purchase with that idea in mind.

Defendant testified that when the piano was delivered to her and placed in her home she was very much dissatisfied with it, and particularly with its tone, which was metallic and, to use her own expression, lacked brilliancy, life, and soul. She also testified that its mechanical action was difficult and stiff to the point that it was utterly unadapted and unsuitable for the use of her eleven year old daughter. She made her complaints to plaintiff over the telephone, and also to the tuner who was sent out to her home by plaintiff some ten days after the delivery of the piano. The piano was tuned, a customary matter in every instance, according to plaintiff's evidence, after the moving of a piano; and certain replacements and adjustments were made at no expense to defendant. The bass strings concededly proved to be defective and were replaced, and changes were made with regard to the motor. Defendant's evidence was that an entirely new motor was installed, while plaintiff's explanation was that only a small pulley was attached to the original motor to compensate in the action of the piano for the abnormally weak electric current which was found to come into defendant's house.

Defendant's evidence was that the tuning, replacements, and changes so made did not better the condition; and the complaints on her part continued, with frequent attempts on plaintiff's part to remedy the situation, until the following September, after which plaintiff had nothing further to do with the piano. She testified that after plaintiff's employees ceased servicing the piano in September, neither its tone nor its action were improved, and she had several witnesses who testified to the difficult action and poor quality of the tone. It is significant, however, that most, though not all, of such witnesses had examined the piano only a few days before the trial in June, 1932, after it had stood for almost two years without tuning. The witnesses for both parties agreed rather generally that a new piano requires tuning more frequently than an old one, and that any instrument should be tuned a minimum of four times a year to correspond with the seasonal changes in temperature and weather.

Suffice it to say that plaintiff's evidence, directly contradictory to that for defendant, was that there was at no time anything inherently wrong with the piano; that it only required the customary and usual amount of tuning; that it was put in perfect condition after delivery to defendant, and could again be put in the same condition by tuning together with such minor adjustments as all pianos require from time to time; that its tone and action conformed in all respects to the high standards required and expected in Steinway pianos; and that its tone qualities, construction, and action were such as to make it fully suitable for the use of defendant's daughter in pursuing her studies in music.

So far as concerns the question of rescission, defendant's evidence tended to show a rescission in October, 1930, expressed not only over the telephone but by letter as well. Plaintiff's evidence was to the effect that any such rescission, even if attempted to be made, was not adhered to; and that defendant's actual difficulty lay in her subsequently developing financial inability to go through with the bargain rather than in any real dissatisfaction with the tone of the piano or its performance. The basis of plaintiff's contention is to be found in the contents of letters written to it by defendant after October, 1930, which were inconsistent with the idea of a rescission as we shall later have occasion to show.

In April, 1931, defendant employed an attorney to represent her in her further negotiations with plaintiff, and such attorney remained in the case, and in the course of his efforts caused an answer to be prepared and filed, until May 5, 1932, when he withdrew by leave of court. Defendant's present counsel were then employed, and amended pleadings filed; and in June, 1932, as has been heretofore indicated, the case came on for trial before a jury.

The petition, as to the form of which there is no complaint, set up the terms of the contract and defendant's default in payment, and prayed judgment for the balance due in the sum of $3,666.25, with interest thereon at 6 per cent. from June 14, 1930.

Defendant countered with an amended answer and a counterclaim, which, though separately drawn, were substantially the same as to allegations, the defense being one of alleged fraudulent misrepresentations on the part of plaintiff in effecting the sale of the piano. Of the several matters so asserted, defendant relied in the submission of the case upon alleged misrepresentations relative to the superior tone qualities of the piano and its adaptability to use by her daughter. By way of counterclaim she sought to recover the sum of $1,208.75, representing the aggregate of the payments made by her under the contract, including the trade-in allowance on her old piano.

Plaintiff's reply was in the conventional form.

The verdict of the jury was for defendant on plaintiff's cause of action, and also for defendant on her counterclaim in the sum of $950. Judgment was rendered accordingly; and, following the overruling of its motion for a new trial, the plaintiff has duly appealed.

Among the many points which have been urged by plaintiff as grounds for a reversal of the judgment is the underlying point in the...