Arthur E. Guth Piano Co. v. Adams

• Decision Date: 03 February 1916
• Citation: 96 A. 722,114 Me. 390
• Parties: ARTHUR E. GUTH PIANO CO. v. ADAMS et al.
• Court: Maine Supreme Court

96 A. 722

114 Me. 390

ARTHUR E. GUTH PIANO CO.

v. ADAMS et al.

Supreme Judicial Court of Maine.

Feb. 3, 1916.

Exceptions from Supreme Judicial Court, Penobscot County, at Law.

Action by the Arthur E. Guth Piano Company against Theodore M. Adams and trustee. There was judgment for plaintiff, and defendant brings exceptions. Exceptions overruled.

Argued before SAVAGE, C. J., and CORNISH, KING, HALEY, and HANSON, JJ.

George H. Worster, of Bangor, for plaintiff. C. J. Hutchings and E. P. Murray, both of Bangor, for defendants.

SAVAGE, C. J. Action of assumpsit to recover three installments of $15 each, which the plaintiff claims to be due to it according to the terms of the following written contract:

"Bangor, Maine, Dec. 7, 1914.

"I have this day hired and received of the Arthur E. Guth Piano Co. one Kohler & Campbell piano, style K, No. 155,759, of the agreed value of $300.00, for which I agree to pay $15.00 Jan. 7, 1915, and $15.00 per month with interest.

"It is understood and agreed that I neither claim, dispose of, nor can I acquire any title whatever to the above property, until said payments shall amount to the sum of $300.00 with interest, at which time it is agreed that said Arthur E. Guth Piano Co. shall sell and deliver to me said property with good and effectual receipted bill of sale thereof.

"I also agree to make payments promptly, as agreed above, on the 7th day of each month and any failure to comply with the terms herein mentioned I do hereby authorize and empower and direct said Arthur E. Guth Piano Co. or their authorized agent or attorney, without process of law, to enter and retake, and may enter and retake immediate possession of said property, wherever it may be, and remove the same, I forfeiting all that has been paid thereon. Theodore M. Adams."

Under the contract the piano was delivered to the defendant. Nothing has been paid.

The case comes before this court on the defendant's exceptions to the exclusion of evidence, and to instructions and refusals to instruct, by the presiding justice.

The defense is twofold: First, that the defendant's promise in the written instrument to pay the monthly payments was not a promise for the breach of which the plaintiff can maintain a suit, and that the plaintiff's only remedy is to retake the piano; and, secondly, that the plaintiff's agent, in the negotiations for the piano, expressly warranted its quality and condition, that the representations were not true, and that in consequence thereof the defendant seasonably rescinded the contract.

I. We think this contract crudely drawn in the guise of a lease was a conditional sale. The vendor retained the title as security for the purchase price. The title was to be passed on condition that the vendee made the payments. Gross v. Jordan, 83 Me. 380, 22 Atl. 250; Morris v. Lynde, 73 Me. 88; Reynolds v. Waterville, 92 Me. at page 304, 42 Atl. 553; Robinson v. Berry, 93 Me. 320, 45 Atl. 34; Franklin Motor Car Co. v. Hamilton, 113 Me. 63, 92 Atl. 1001. In a conditional sale the vendee may expressly promise to pay or he may not. If he does not promise to pay, the vendor's remedy is to retake the property; he cannot recover the price of the vendee. Such were the contracts in the cases of Hopkins v. Maxwell, 91 Me. 247, 39 Atl. 573, and Campbell v. Atherton, 92 Me. 66, 42 Atl. 232, on which the defendant relies. These cases, therefore, are not authority for a doctrine that the vendee in a conditional sale who has expressly promised to pay is not liable upon his promise. If the conditional vendee expressly promises to pay, suit may be maintained against him on his promise, and the vendor may also enforce his security. Westinghouse Electric, etc., Mfg. Co. v. A. & T. R. R. Co., 106 Me. 349, 76 Atl. 897. And we cannot conceive that it makes any difference whether the promise is in the form of a promissory note, or is otherwise expressed in the contract. Since this suit is between the original parties to...