Colby v. W.W. Kimball Co.

• Decision Date: 19 October 1896
• Citation: 68 N.W. 786,99 Iowa 321
• Parties: W. B. COLBY v. THE W. W. KIMBALL COMPANY, Appellant
• Court: Iowa Supreme Court

68 N.W. 786

99 Iowa 321

W. B. COLBY v. THE W. W. KIMBALL COMPANY, Appellant

Supreme Court of Iowa, Des Moines

October 19, 1896

Appeal from Polk District Court.--HON. C. P. HOLMES, Judge.

ACTION at law to recover for the conversion of specific personal property. There was a trial by jury, and a verdict and judgment for the plaintiff. The defendant appeals.

Affirmed.

Bishop Bowen & Fleming and D. F. Callender for appellant.

Dowell & Parrish for appellee.

OPINION

ROBINSON, J.

On the fifteenth day of May, 1891, the plaintiff purchased of the defendant a piano, for the agreed price of three hundred and twenty-five dollars. Of that sum, sixty-five dollars were paid by the delivery of an organ, eighty-seven dollars and fifty cents were to be paid in board and room, and the remainder was to be paid in monthly installments of ten dollars each, with interest at the rate of eight per cent per annum. The agreement in regard to the payments is in writing, and contains the following: "To secure the payment of the sums of money in the foregoing note contracted to be paid, * * * the undersigned hereby mortgages to said W W. Kimball Company one piano, * * * being the property sold by said W. W. Kimball Company to me, in part payment for which the foregoing note is given. And it is agreed that in case default is made in the payment of any installment of said note at the time and place therein mentioned, * * * or whenever the said W. W. Kimball Company, or its assignees, may so elect, the said W. W. Kimball Co., its agents, or assigns, shall have the right to take possession of said property, wherever found, and proceed to sell the same at public sale, as by statute in such case provided, and apply the proceeds of said sale to the payment of the sums mentioned in the foregoing note then remaining unpaid, whether the same be due or not, * * *." In September, 1893, after the plaintiff had paid on the piano, sums which amounted in the aggregate to two hundred and six dollars and sixty-four cents, the defendant took possession of the piano under the mortgage, and a short time thereafter sold it at private sale, realizing therefrom, after the payment of expenses, the sum of one hundred and thirty-eight dollars. This action is brought to recover the value of the piano.

The defendant admits the taking of the piano, but avers that it was so taken with the consent of the plaintiff, and has ever since been held by virtue of the contract of sale; that at the request of the plaintiff, the piano was held without proceeding to advertise a sale, for the purpose of giving the plaintiff an opportunity to pay the indebtedness and resume possession of the piano; that at the same time it was agreed that if the plaintiff could not, within a reasonable time, pay the balance due, the defendant should have the right to dispose of the piano in such a manner as it might see fit, and apply the proceeds on the amount due; that the defendant is now ready and willing to return the piano to the plaintiff upon receiving the amount due from her. The defendant, in a counter-claim, demands judgment for the sum of one hundred and fifty dollars. The verdict and judgment in favor of the plaintiff was for the sum of one hundred and four dollars, exclusive of costs.

I. The plaintiff was asked to state the value of the piano when it was taken from her. The question was objected to as "incompetent and immaterial, and the witness is not competent to testify of values." The objection was overruled, and, we think, properly so. The answer called for by the question, was both competent and material, and it was not shown that the witness was incompetent to testify. The objection was not made on the ground that her competency had not been shown. Moreover, although she had not been examined with respect to her knowledge of values, she had so testified as to show that she knew something of them. Her testimony in regard to the value of the piano in controversy was properly admitted. That is true of the testimony of a witness named Yegge. He was a piano salesman, and had been selling pianos for five or six years. In fact, he sold to the plaintiff the piano in question. He did not see it at the time it was taken, but its...