Eilers Music House v. Oriental Co.

• Decision Date: 21 August 1912
• Citation: 69 Wash. 618,125 P. 1023
• Parties: EILERS MUSIC HOUSE v. ORIENTAL CO.
• Court: Washington Supreme Court

125 P. 1023

69 Wash. 618

EILERS MUSIC HOUSE v. ORIENTAL CO.

Supreme Court of Washington

August 21, 1912

Department 2. Appeal from Superior Court, King County; Mitchell Gilliam Judge.

Action by Eilers Music House against the Oriental Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Howard O. Durk, for appellant.

Wright & Kelleher, Charles S. Gleason, and Edward W. Allen, all of Seattle, for respondent.

ELLIS J.

On March 15, 1909, the defendant purchased from the plaintiff upon a written conditional sale contract, a mandolin pianorchestra for an agreed price of $1,900. The defendant was credited with $393.65 for amounts paid upon other instruments formerly purchased by it and returned in exchange, and with $200 cash paid at the making of the contract. By the contract the defendant agreed to pay the balance of the purchase price in monthly installments of $100 each. It was agreed that title to the instrument should remain in the vendor until payment, and that if the vendee should fail to make any payment at the times mentioned, or should remove, attempt to remove, or sell the instrument, the vendor should have the right to take possession thereof and retain all payments as liquidated damages for breach of the agreement, and as payment for the use of the instrument. The contract also declared that 'any agreement, other than that expressed on the face of this contract, will not be recognized.' The defendant paid the installments maturing on the 15th of April, May, and June, but refused to pay the installment due July 15, 1909. The plaintiff demanded a return of the instrument, which being refused it brought this action and obtained possession by statutory process.

The complaint set out the contract in full, claimed the plaintiff's right to possession by virtue of the breach, alleged demand by plaintiff for possession on August 9, 1909, and the refusal to deliver the same by the defendant. It alleged damages for the unlawful detention in the sum of $500, and that the value of the use of the instrument was $10 a day.

The answer admitted the execution of the contract, denied the alleged damages for unlawful detention, denied the allegation that the value of the use of the instrument was $10 a day, and set up an affirmative counterclaim for the recovery of the money paid on the purchase price, amounting to $893.95, on the ground that the instrument failed to meet certain alleged verbal warranties made by the plaintiff at and prior to the time of the execution of the written contract. The reply put in issue the affirmative allegations of the answer.

At the trial the defendant admitted that the plaintiff was entitled to judgment for the possession of the instrument. The plaintiff admitted that it had credited the defendant with $593.95, mentioned in the contract as allowed upon the purchase price, and $300 for the three monthly installments which had been paid. The plaintiff waived any claim for damages or rent of the instrument accruing subsequent to its demand for possession.

The defendant moved for judgment on these admissions for the amount credited on the contract and demanded in its counterclaim. The motion was denied. The defendant then offered evidence in support of its counterclaim. The trial court refused to admit evidence of any verbal representation or warranties made by the plaintiff prior to the execution of the contract, on the ground that the contract was complete in itself, and such warranties, to be available, would have to be found in the written instrument. The court, however, did admit evidence of certain defects in the instrument, on the ground that there was an implied warranty that the instrument was adapted to the purpose for which it was sold. The evidence showed that a certain automatic device was so defective that the instrument frequently failed to properly furnish music until adjusted. No evidence was offered to show that the defendant had suffered any monetary loss or injury to its business by reason of this or any other defect in the instrument. Upon the conclusion of the defendant's evidence, the plaintiff moved to dismiss the counterclaim, upon the ground that there was no evidence showing damages in any amount. The motion was granted, and judgment was entered, awarding to plaintiff the possession of the instrument. The defendant has appealed.

The appellant first assigns as error the denial of its motion for judgment at the close of the respondent's case. The argument briefly is that, the respondent having admitted that $893.95 had been credited upon the contract, and having waived any claim for damages and rent for the detention of the instrument after demand for possession, and having neither asked for nor proved specific damages for the breach of the contract, and having procured possession of the instrument by replevin, it had no right to retain the money paid upon the contract. A sufficient answer to this argument is found in the nature of the action. It was an action to enforce the contract, not to rescind it. It was an action to recover possession of the chattel, not to recover damages for breach of the contract. Respondent had already received payment of damages by retaining, under the stipulation of the contract, the part of the purchase price which had been paid. The contract declared that any payments made prior to the breach might be retained as liquidated damages for the breach, and as payment for the use of the instrument. The breach of the contract was admitted by the appellant. The respondent, having retained this money as liquidated damages for the admitted breach, could not claim any other damages for the breach, or for the use of the instrument. If the stipulation for liquidated damages is to be held valid, the respondent was not required to prove that he suffered any damage. Sanford v. First National Bank, 94 Iowa, 680, 63 N.W. 459; Little v. Banks, 85 N.Y. 259; 13 Cyc. p. 105.

If the stipulation for liquidated damages was a valid stipulation, then the appellant could only recover the money paid upon the purchase price by rescinding the purchase for sufficient cause and voluntarily returning the instrument, or by proving damages in the amount paid upon the contract for failure of the instrument to perform the functions for which it was purchased. Appellant never sought to rescind the contract, but ratified and affirmed it by refusing to return the instrument; and at the time the motion was denied it had introduced no evidence in support of its counterclaim for damages for the alleged breach of warranty.

The appellant further contends that the provision for liquidated damages should be treated as a penalty or security for the actual damages which the respondent could prove that it suffered from the breach of the contract. It is first argued that the several acts for which respondent might retake the instrument and retain the payments as liquidated damages, namely, failure to pay any installment, removal of the instrument, or attempt to sell or remove it, are so different in degree of importance that the same measure of damages could not...