American Player Piano Co. v. American Pneumatic Action Co.
Decision Date | 06 October 1915 |
Docket Number | 29707 |
Citation | 154 N.W. 389,172 Iowa 139 |
Parties | AMERICAN PLAYER PIANO COMPANY, Appellee, v. AMERICAN PNEUMATIC ACTION COMPANY et al., Appellants |
Court | Iowa Supreme Court |
Appeal from Scott District Court.--HON. A. J. HOUSE, Judge.
ACTION to recover liquidated damages for failure to deliver certain pneumatic piano players in accordance with the terms of a certain contract between the parties. The opinion discloses the facts upon which the suit is predicated. Judgment below for the plaintiff. Defendant appeals.
Reversed.
Bollinger & Block, for appellants.
Cook & Balluff, for appellees.
This action is based upon the following contract, executed the 8th day of February, 1910. In the contract, the defendant is designated as party of the first part, and the plaintiff party of the second part.
It is claimed that defendant failed, neglected and refused to furnish seven player actions each week from and after March 15, 1910; that, during the period from March 3, 1910, until August 13, 1910, the defendant furnished and delivered to the plaintiff only twenty-five player piano actions; that from and after August 13, 1910, defendant failed or refused to furnish any actions whatever to the plaintiff, although plaintiff demanded the same, and was ready and willing to receive actions of the kind provided for in the contract.
I. To properly understand the rights of these parties under this contract, and to apply the law to the contract in disposing of these rights, it is necessary that we have at the outset an understanding of what the parties undertook and agreed to do in the contract. To this end, it is necessary that we have before us a brief history of the situation as it then existed, and the relationship of the parties to the situation, and to the subject-matter of the contract.
The contract sued on was originally entered into between the defendant, the American Pneumatic Action Company, and Paul H. Johnston, C. I. Josephson, and George W. Rundquist. The plaintiff is the successor to all the rights in the contract obtained by Johnston, Josephson and Rundquist. It is a corporation, organized as such by Johnston and his associates, to sell these automatic player actions, under the Turney patent mentioned in the contract. About the year 1910, Johnston became interested in a proposed automatic piano player, the invention of Mr. E. T. Turney, and took part in the formation of a company for the purpose of manufacturing these players under that patent. The company was known as the American Pneumatic Action Company. This company, at the time Johnston was connected with it, manufactured these automatic players, and they were tried out and played. He later severed his connection with that company, and arranged to form a company to sell the actions manufactured by the Automatic Action Company, and associated with him the parties named in the contract. The piano player referred to in the contract was the piano player invented by Turney, and the one then being manufactured. There was only one kind of player action made at the time of the contract,--that is, one style under the Turney patent.
In speaking of the machine to be set apart and marked and labeled the standard, Johnston said:
Johnston was familiar with the design and plans of the Turney machine. He was at the factory frequently, and was superintendent up to the time the defendant company was reorganized, very close to the time that the contract in question was made, and was in the factory frequently after that time; was in the manufacturing and testing rooms; saw tests being made; made suggestions as to what could be done to overcome defects in design and plan. He was instrumental in forming the plaintiff company, in connection with his associates in the contract. It was he who took up with defendant company the negotiations which resulted in the contract in question. The plaintiff company was organized subsequent to the making of the contract in question.
The evidence tends to show that these automatic players when first installed would play all right, but after they had been sent out and used a while, they leaked. That was due to atmospheric conditions that affected the diaphragm used in the wind chest cord. Defendant company attempted to remedy these defects; put in new diaphragms and tried them over again. There is evidence that these piano players, when sent out, were returned at first, for the reason that they would not stand up, but leaked, --due, as the evidence tends to show, to atmospheric conditions. The design, the scheme, the plan was not perfected so as to make them, even when...
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