Charles M. Stieff, Inc., v. City of San Antonio

• Citation: 111 S.W.2d 1086
• Decision Date: 05 January 1938
• Docket Number: No. 1710-6967.,1710-6967.
• Parties: CHARLES M. STIEFF, INC., v. CITY OF SAN ANTONIO.
• Court: Supreme Court of Texas

111 S.W.2d 1086

CHARLES M. STIEFF, INC., v. CITY OF SAN ANTONIO.

No. 1710-6967.

Commission of Appeals of Texas, Section B.

January 5, 1938.

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Action by Charles M. Stieff, Incorporated, against the City of San Antonio, to recover purchase price or return of piano. Judgment for plaintiff, for $1,595, was reversed by Court of Civil Appeals, 83 S.W.2d 357, and plaintiff brings error.

Judgment of Court of Civil Appeals reversed, and judgment of district court affirmed.

The opinion of Chief Justice Bickett, which was a dissent from the majority decision in 83 S.W.2d 357, herewith adopted, follows:

Chas. M. Stieff, Inc., a corporation, sued the city of San Antonio to recover the price of a piano, which was sold and delivered to the city, or, in the alternative, to recover the possession of the piano and the amount of its reasonable rental value. Plaintiff recovered judgment against defendant for $1,595, representing the purchase price of the piano, $1,300, plus interest. Defendant has appealed from that judgment.

The important issues on this appeal are: (1) Whether, as between Chas. M. Stieff, Inc., and Walthall Music Company, there was a bailment upon consignment or an outright sale of the piano; and (2) whether the city was entitled to retain possession of the piano by reason of a pre-existing tax debt due to the city by Walthall Music Company.

The facts are undisputed and free from doubt.

The contract between Chas. M. Stieff, Inc., and Walthall Music Company, under which the piano was subsequently shipped, was in the form of a letter, dated March 4, 1929, signed by the former and accepted in writing by the latter, reading as follows:

"We will ship in accordance with your order, the following instruments:

                #185 Stieff Petit — Figured Mahogany, dull   670.00
                #66 Davis & Son, Mahogany dull                     180.00
                #60 Bennett-Bretz, Mahogany                        340.00
                

— on consignment for four months. It is understood that Walthall Music Company is to pay the freight from Baltimore and to carry the insurance at our wholesale prices as above quoted. If the instruments shipped under this agreement are paid for within thirty (30) days from date of shipment, a cash discount of three percent (3%) will be allowed from billing prices.

"Should these instruments not be sold at the expiration of four months, and should we order them returned at that time, or at any future time, Walthall Music Company agrees to pay the freight and for any unreasonable wear and tear.

"Monthly stock reports will be sent Chas. M. Stieff, Inc., showing location of all unsold consigned pianos.

"Should the instruments remain, by mutual consent, above the term of four months it is understood that Walthall Music Company is to pay Chas. M. Stieff, Inc., interest at the rate of six per cent (6%) per annum. In the event the instruments are sold, the firm of Chas. M. Stieff, Inc., will receive from Walthall Music Company cash settlement in full plus the interest charge, if any.

"It is agreed that should Walthall Music Company sell an instrument consigned to them by Chas. M. Stieff, Inc., on time or on installments, Walthall Music Company may as agents of Chas. M. Stieff, Inc., sell to a finance Company such contract resulting from such sale, with recourse on the Walthall Music Company but not on Chas. M. Stieff, Inc., for a sufficient amount to enable the Walthall Music Company to settle with Chas. M. Stieff, Inc., for the instrument involved. Said settlement to be made by Walthall Music Company to Chas. M. Stieff, Inc. immediately after proceeds from sale of such contracts are returned by Walthall Music Company.

"Such additional shipments as may be agreed upon will be made on the same basis and at the then prevailing prices. Your acknowledgment and acceptance of the foregoing will constitute the contract."

Prior to the time the transaction in question arose, there had been a departure from the agreed plan of business, and then a return to the original contractual basis. Between the date of the contract, March 4, 1929, and the time of the bankruptcy of Walthall Music Company, February 3, 1930, Chas. M. Stieff, Inc., shipped to Walthall Music Company about 25 pianos, not including the one involved in this suit. Of those pianos, 5 remained on hand and were delivered by the trustee in bankruptcy of Walthall Music Company to Chas. M. Stieff, Inc., as consignor and owner, and the other 20 had been sold to various purchasers. Walthall Music Company, having accepted purchasers' notes on some of the pianos sold by it prior to the latter part of November, 1929, and having been unable to sell the notes to a finance company, as contemplated, sent to Chas. M. Stieff, Inc., trade acceptances, to which the purchasers' notes were attached as collateral security. In that manner and to that extent the original contract was modified. On November 27, 1929, Chas. M. Stieff, Inc., stated in a letter to Walthall Music Company that it would be necessary for them to revert to the original contract of March 4, 1929, that this should be definitely understood and confirmed by letter from the addressee, and that future shipments would be conditioned upon the receipt of such letter of confirmation. On December 2, 1929, Walthall Music Company confirmed the understanding with reference to the requirement to return to the contract of March 4, 1929, as the basis of all shipments from and after November 27, 1929.

On November 29, 1929, Chas. M. Stieff, Inc., in reply to an inquiry of Walthall Music Company, sent the following telegram: "Can ship five foot eight grand about one week provided you assure us that settlement will be made for cash when sold in accordance with provisions of contract of March fourth. Please wire." On the same day, Walthall Music Company sent a telegram to Chas. M. Stieff, Inc., stating: "Collateral aggregating thirty seven hundred sent you twenty sixth per your letter twenty third. Stop. Sale five foot eight for use Municipal Little Theatre will be cash one. Please ship immediately." Chas. M. Stieff, Inc., accordingly shipped the piano in question to Walthall Music Company on December 13, 1930.

When the piano arrived, it was immediately delivered, on January 15, 1930, by Walthall Music Company to the Municipal Little Theatre, without being placed on exhibit or offered for sale in the store of Walthall Music Company.

It was understood by all parties that the city was to pay the sum of $1,300 in cash for the piano upon its delivery. This was the understanding of Chas. M. Stieff, Inc., and of Walthall Music Company, as shown by the letters and telegrams and the testimony. Such, also, was the understanding and intention of the city, as shown by the official acts of the mayor and commissioners.

On January 13, 1930, two days before the delivery of the piano, in pursuance of the undisputed understanding that the city was to pay cash for the piano, the city commission passed the following ordinance: "Be it ordained by the Commissioners of the City of San Antonio, that the City Purchasing Agent be, and he is hereby, directed to issue requisition to Walthall Music Company for one Stieff Grand Piano for use in San Pedro Playhouse, and that the sum of $1300.00 be and the same is hereby appropriated out of Recreation Fund to pay for same."

Likewise, on the same date, the mayor of the city signed the warrant drawn on the city treasury for $1,300, payable to Walthall Music Company, in payment of the piano.

On January 15, 1930, the city auditor, before delivering the warrant, ascertained that Walthall Music Company was indebted to the city on account of taxes, and, therefore, refused to deliver the warrant until and unless the taxes should be paid. This action of the auditor in refusing to deliver the warrant was taken by reason of a provision in the city charter, which is as follows, to wit: "Section 114. Before the delivery of any warrant by the Auditor to the payee thereof the Auditor shall carefully ascertain whether or not such person is in any manner indebted to the City for matured taxes or debts of any kind, and if he shall find that such payee is so indebted to the City, he shall not deliver such warrant unless such person shall then and there actually pay such taxes or debts to the proper receiving officer. If such payee refuses to pay such taxes or debts, the Auditor shall refuse delivery of such warrant, and shall make report thereof at the next meeting of the Board of Commissioners, together with a statement of the nature of the claim asserted by the City against the payee, and in such case, the Auditor shall await the action of the Board of Commissioners before delivering such warrant; provided, however, that this section shall apply only to persons receiving warrants for their compensation and shall not apply to current wages of those persons who are to be paid weekly."

So far as the record shows, the auditor did not make any report to the commission as to his refusal to deliver the warrant, nor did the commission take any further action as to the matter.

The city did, however, retain possession of the piano, and has continued to use it without paying for it up to the present time.

Upon the trial of the case, the tax bills of the city of San Antonio and of the San Antonio Independent School District were introduced to show that Walthall Music Company owed taxes to those two municipal corporations.

On February 11, 1930, Chas. M. Stieff, Inc., through its attorneys, informed the mayor that Walthall Music Company had been adjudged bankrupt, that the piano delivered to the city had not been paid for by the city, and that Chas. M. Stieff, Inc., was the owner of the piano, since it had been shipped on consignment to Walthall Music Company. The city refused to surrender the piano, or to pay for it.

Although the city filed its original answer in this case on December...