F. O. Evans Piano Co. v. Tully
| Citation | 116 Miss. 267,76 So. 833 |
| Decision Date | 03 December 1917 |
| Docket Number | 19651 |
| Court | United States State Supreme Court of Mississippi |
| Parties | F. O. EVANS PIANO CO. v. TULLY |
APPEAL from the circuit court of Jones county, HON. P. B. JOHNSON Judge.
Suit by the F. O. Evans Piano Company against A. J. Tully. From a judgment for defendant, plaintiff appeals.
The facts are fully stated in the opinion of the court.
Judgment reversed.
Welch & Street, for appellant.
Whether the time of the offer for the return of the piano be fixed on August the 14th, the date of the letter of Mrs. Tully, asking for shipping instructions, or September the 14th, 1914, the date of the letter of Tully himself asking for shipping instructions, or the somewhat indefinite date prior thereto fixed by the appellee in his testimony at not more than four months before that time be established as the date of offering to return the piano, was not that such an unreasonable time that the plaintiff was warranted in believing that the appellee had elected to keep the piano? If he could keep the piano four or five months after the expiration of the thirty day period, why couldn't he keep it for a year for the purpose of testing it, and then for two years and then for three years? In the case of Morse v Bellows, 7 New Hampshire, 549, 28 American Decision 372, the court said: "A proposition, to become binding on the making it, must be accepted within a reasonable time; but what constitutes a reasonable time, when no time is specified, is a question of law, and depends on the subject-matter and the situation of the parties." And to the same effect is a decision of the court in the case of Hill v. Hobart, 16 Maine 164, where the court said that where the facts are clearly established, or undisputed, or admitted the reasonable time is a question of law. And in defining a reasonable time, the court said in the case of Scannell v. Am. Soda Fountain Co., 161 Mo. 606, 61 So. 889, "that is a reasonable time that preserves to each party the rights and advantages he possesses, and protects each party from losses that he ought not to suffer."
In the case of Hargadine-McKittrick Dry Goods Co. v. Renolds, 64 F. 506, it was held as a matter of law that a delay of six days in answering an ultimatum as to the price of goods was unreasonable. See, also, the case of Moxly v. Moxly, 59 Ky. 309, in which it was held that if no definite time is stated the inquiry as to what is a reasonable time within which a proposition must be accepted is as to what time it is rational to suppose that the parties contemplated; that the law will decide this to be that time which, as rational men, they ought to have understood each other to have in mind.
The case of McFadden v. Henderson, et al., 128 Ala. 221, 29 So. 640, is an interesting case holding that a question of time or construction of a contract where the facts are undisputed is a question for the jury. See also the cases of Felnorth v. Foley, 98 Ala. 176, 13 So. 485, and Branhill v. Howard, 104 Ala. 412, 15 So. 1, to the same effect.
But why should the court make a contract for the parties they did not make for themselves. Any effort on the part of a court to make contracts for the parties by reading into the contract something not there has always lead to endless confusion and dissatisfaction.
The parties are all of age, there is no suggestion of improper influence, undue influence or unfair methods. The parties entered into a solemn contract in writing. Why should the court read into the contract something the parties to it did not write into it? How can the court say that though given thirty days in which to return the piano, the defendant shall have in addition to thirty days a further reasonable time. Tully seems to be able to take care of himself. Why didn't he write into the contract that he was to have a reasonable time, or four months' time after the expiration of thirty days to return the piano? By the way, he contracted to return to freight depot not to write letters offering to return.
But if we are incorrect in our contention that the appellee had only thirty days in which to return the piano if he elected not to take it, and the court was correct in ruling that he had a reasonable time thereafter in which to return it, then we respectfully insist that what was a reasonable time was for the court to say as a matter of law and not a question for the jury. And in support of this contention we respectfully urge the court to read the case of Aymar v. Beers, 17 Am. Decision, 538, and the very interesting and instructive note thereon by Judge FREEMAN, but if we are incorrect as to this and this was a proper question for a jury, then we do most earnestly insist that it was a question that should have been submitted only on competent testimony and the testimony of the appellee as to what he had written to appellant was certainly incompetent, yet this testimony no doubt influenced the jury to bring in a verdict for the defendant. We think the letter written by appellee's wife was competent. The appellee had notice of the letter and its contents by the reply addressed to appellee and coming into his possession. Failing to repudiate the agency then, he should not be permitted to do so now.
We confidently ask for a reversal of the case and for judgment here.
Deavours & Hilbourn, for appellee.
The burden of appellant's complaint is that appellee did not ask for shipping instructions soon enough after the piano was delivered to him; that he did not return the piano in time. We submit that if the contract sued on was an executory contract of sale, which it is not, even then he would be under no obligation to actually return the piano.
"It is not necessary that the buyer, in an executory contract depending for validity upon acceptance after examination, should actually return, or offer to return the goods, especially when the distance is great, and the freight charges large." Strauss v. National Parlor Furniture Company, 76 Miss. 342, 24 So. 703, and the authorities there cited.
Was the right result reached in the court below? As we understand it, this is the only question about which this court is concerned; that the court will not reverse this case on account of the admission or exclusion of evidence, or on account of instructions given, if taking the record as a whole, the correct result was reached. Appellant bases its suit on the contract sued on; on this it must stand or fall. We submit that an examination of the contract, and of the correspondence between the parties after the execution of the contract, will show that neither party considered this a sale or contract for sale; the company repeatedly asking Tully to sign the contract. Tully declining to do anything except to return the piano to the depot in accordance with the contract.
We therefore submit that the judgment of the lower court is eminently correct, wholesome and proper and that it ought to be affirmed by this court.
Appellant, a piano dealer of Chicago, Ill., placed a piano with Tully, at Laurel, Miss., under a contract signed by Tully, which is substantially as follows:
Then follows a description of the piano and the terms of sale, in which it was agreed to pay for the piano in monthly installments. The piano was shipped to Tully on this order. On December 31, Tully wrote that the music rolls had been received, but that the piano had not arrived, although he had phoned all the freight offices. On January 8, 1913, Tully wrote to the piano company that the piano had arrived that day in bad condition, there being some marks on the keys, and the player out of commission; that it seemed to have been roughly handled in transit. He also returned the freight bills and requested check to cover same, also requesting the piano company to have its agent call and look over the piano. On January 13th the piano company wrote Tully, acknowledging receipt of his letter of the 8th, and inclosing check for the freight bills, but returned the freight bills and asked that Tully have the agent mark on the freight bills that the piano was received in bad condition, so that damages could be collected from the carrier, and directed Tully to have the piano returned, if it could not be satisfactorily fixed, and another would be sent. It was also suggested that he get a piano tuner to look over the piano and see if it could be put in proper condition, and to send the bill to the piano company for payment. To this letter the appellee did not reply. On February 28th the piano company again wrote Tully, asking him to have the piano fixed, and to have the freight bills marked by the agent so they could collect damages from the company. There was no reply to this letter, and on March 11th the piano company again wrote Tully along the same lines. No reply was made to this letter, and on March 19th the piano company wrote another letter along the same lines. On March 27th the company wrote another letter, to which no reply was...
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