Cook v. M. Steinert & Sons Co.

• Court: Connecticut Supreme Court
• Writing for the Court: HAMERSLEY, J.
• Citation: Cook v. M. Steinert & Sons Co., 36 A. 1008, 69 Conn. 91 (Conn. 1897)
• Decision Date: 23 March 1897
• Parties: COOK v. M. STEINERT & SONS CO.

36 A. 1008

69 Conn. 91

COOK

v. M. STEINERT & SONS CO.

Supreme Court of Errors of Connecticut.

March 23, 1897.

Appeal from court of common pleas, Hartford county.

Action by Charles H. Cook against M. Steinert & Sons Company for conversion. From a judgment of the court of common pleas for Hartford county, entered on a verdict for plaintiff, defendant appeals. No error.

The complaint alleges the taking and conversion of a piano, in violation of a conditional contract of sale. By the terms of the contract the title to the piano delivered by the defendant to the plaintiff was to remain in the defendant until the price ($285) should be paid in installments by the plaintiff. Upon the failure of the plaintiff to pay an installment when due, or upon removal of the piano by him without consent of the defendant, the defendant had the right to retake the piano, and the plaintiff forfeited all installments he had previously paid. After the plaintiff had paid $235, the defendant, claiming that the plaintiff had removed the piano without permission, and had failed to pay the installments as agreed, took possession of the piano. The plaintiff relied on a waiver by the defendant, both as to the payment of installments and as to the removal of the piano. The fact of waiver was substantially the only question submitted to the jury. As to this fact the testimony was conflicting. No requests to charge were made by either party. The appeal assigns error on the part of the trial court (1) in charging the jury as to the weight and effect of the testimony; (2) in the statement of the rule of damages; (3) because the charge as a whole is misleading, and prejudicial to the defendant.

William S. Case and S. Spier, for appellant.

Joseph L. Barbour, for appellee.

HAMERSLEY, J. The court charged the jury clearly and correctly as to the law of waiver, and that the burden of proof was upon the plaintiff, claiming under the waiver, and that the proof should be clear and satisfactory. After a review of very conflicting testimony, the court told the jury that they must look at all the circumstances, look at the character of the witnesses, their interest in the case, or their interest in the parties in the case, and determine the facts. In commenting on the testimony the court did, inferentially at least, as claimed by the defendant, express its opinion on the weight of evidence. This is not error, so long as the judge submits the decision of the question to the jury, and his...