Duluth Music Co. v. Clancey

• Decision Date: 20 April 1909
• Citation: 120 N.W. 854,139 Wis. 189
• Parties: DULUTH MUSIC CO. v. CLANCEY ET AL.
• Court: Wisconsin Supreme Court

139 Wis. 189

120 N.W. 854

DULUTH MUSIC CO.

v.CLANCEY ET AL.

Supreme Court of Wisconsin.

April 20, 1909.

Appeal from Superior Court, Douglas County; C. Smith, Judge.

Action by the Duluth Music Company against Mary Clancey and another. From a judgment for defendants, plaintiff appeals. Affirmed.

Among other references upon the part of the appellant were the following: Dunlop v. Mercer, 156 Fed. 545, 86 C. C. A. 435;Atlas, etc., Works v. Parkinson (D. C.) 161 Fed. 223;Chickering Chase Bros. Co. v. White, 127 Wis. 83, 106 N. W. 797;Greek-Am. S. Co. v. Richardson D. Co., 124 Wis. 469, 102 N. W. 888, 109 Am. St. Rep. 961;Loverin & Browne Co. v. Travis, 135 Wis. 322, 115 N. W. 829;Caldwell v. North Carolina, 187 U. S. 622, 23 Sup. Ct. 229, 47 L. Ed. 336;Butler, etc., Co. v. U. S. R. Co., 156 Fed. 1, 84 C. C. A. 167;Northwestern, etc., v. Shaw, 37 Wis. 655, 19 Am. Rep. 781.

Among other references upon the part of the respondents were the following: Turner v. Pierce, 31 Wis. 342;Elwell v. Adder M. Co. (Wis.) 116 N. W. 882;Stahl v. V. M. & St. P., M. & O. R., 94 Wis. 315, 68 N. W. 954;Wausau Boom Co. v. Plumer, 35 Wis. 274;Melchoir v. McCarty, 31 Wis. 252, 11 Am. Rep. 605;Moore v. Kendall, 2 Pinney, 99, 52 Am. Dec. 145;Cohn v. Heimbauch, 86 Wis. 176, 56 N. W. 638; Gibbons v. Ogden, 9 Wheat. 1, 5 L. Ed. 302; Brown v. Maryland, 12 Wheat. 419, 6 L. Ed. 678;Brown v. Houston, 114 U. S. 622, 5 Sup. Ct. 1091, 29 L. Ed. 257;Am. Harrow Co. v. Shaffer (C. C.) 68 Fed. 750;Robbins v. Shelby T. D., 120 U. S. 489, 7 Sup. Ct. 592, 30 L. Ed. 694;Thormaehlen v. Kaeppel, 86 Wis. 378, 56 N. W. 1089.

H. V. Gard, for appellant.

Dietrich & Dietrich, for respondents.

TIMLIN, J.

The plaintiff, a foreign stock corporation, engaged in the sale of pianos and musical instruments, and which had not complied with the requirements of section 1770b, St. 1898, and amendments thereunto, brought this action of replevin for a piano against the defendants. Its principal place of business is at Duluth, Minn., and it had a resident agent at Superior, Wis., who was authorized to sell its pianos in the city of Superior. September 30, 1907, through this agent, and at Superior, Wis., the plaintiff sold and delivered to the defendants the piano in question for the agreed price of $300, and received in part payment of the same from the defendants an organ valued at $75, and the defendants executed to the plaintiff at Superior, Wis., on the same day, a promissory note payable on or before May 30, 1910, for $225, payable in installments at the rate of $7 per month, beginning on October 30, 1907, and monthly thereafter until paid, with interest at 6 per cent. per annum. At the same time there was executed by the defendants and delivered to the plaintiff's agent at Superior, Wis., an instrument in writing, wherein it was expressly agreed that the title, ownership, and right of possession in and to the piano did not pass from the plaintiff until the payments specified in the above-mentioned note and the interest thereon had been fully made. This contract contained other provisions to the effect that in the event of failure or neglect to make the payments, or for other reasons specified, the plaintiff might declare the whole amount due and payable, and bring suit for the unpaid amount of the note, or might take possession of the piano and sell the same at public or private sale, crediting the net proceeds of sale on this note, and in this case all moneys paid on the purchase price of the piano should be retained by the plaintiff as liquidated damages. This piano was shipped by the plaintiff to its resident agent in Superior some days before the sale thereof, and was by him unboxed, put in his place of business, and thereafter offered to defendants for sale, and sold and delivered to them in Superior, Wis. A few days thereafter the plaintiff signed the conditional sale agreement on its part. Defendants made two payments aggregating $14 on the note, but no more. The plaintiff, before beginning replevin, demanded possession of the piano, which demand was refused. It did not return or offer to return the consideration received. One of the defendants is an infant, and was the owner of the organ taken by the plaintiff in exchange, and the other defendant, when the demand for possession of the piano was made by plaintiff, informed plaintiff it could have the piano if the organ was returned. The superior court concluded from the foregoing facts that at the time of the sale of said piano by the plaintiff to defendants, and at the time of the execution of the contract of conditional sale, the plaintiff could not lawfully transact business or acquire, hold, or dispose of property in this state, and that said contract of conditional sale was wholly void in plaintiff's behalf. He therefore adjudged a return of the piano with six cents damages to the defendants, or, in the alternative, judgment for $200, its value, in case a return could not be had. The case was partly tried to a jury and covered by findings of the court, but no extended reference to that incident of the trial is necessary.

It is thought by appellant that the superior court erred in its conclusions of law based upon the facts above recited, and it contends that the transaction above detailed was one of interstate commerce and therefore valid, but that, even if the conditional sale contract is void, the title and right to possession remained in the plaintiff. Where goods are shipped by a resident of another state to his commission agent in this state, not in response to an order from a purchaser, but to be held by such agent as the whole or part of his stock of commission goods in this state, and thereafter to be sold and delivered from said stock in this state by this commission agent, this last sale and delivery is not a...