Farrand & Votey Organ Co. v. Board of Church Extension of Methodist Episcopal Church
| Decision Date | 30 September 1898 |
| Docket Number | 944 |
| Citation | 17 Utah 469,54 P. 818 |
| Parties | THE FARRAND & VOTEY ORGAN CO., RESPONDENT, v. THE BOARD OF CHURCH EXTENSION OF THE METHODIST EPISCOPAL CHURCH, APPELLANT |
| Court | Utah Supreme Court |
Appeal from district court, Weber county; H. H. Rolapp, judge.
Action by the Farrand & Votey Organ Company against the Board of Church Extension of the Methodist Episcopal Church. Plaintiff had judgment, and defendant appeals.
Affirmed.
A. E Ostien and A. E. Pratt, for appellant:
The court erred in denying the nonsuit. Andrews v. Ins Co., 92 N.Y. 596, Brown v. Parsons, 10 Utah 223; Armstrong v. Cache L. & C. Co. (Utah), 49 P 690; Kelly et al. v. Kershaw (Utah), 14 P. 804 and note; Sartwell v. Frost, 122 Mass. 183; Reed v. Morton, 1 L. R. 736; Hatch v. Taylor, 10 N.H. 538; Collins v. Townsend, 58 Cal. 608; Henderson et al. v. Gibbs et al., 18 P. 926; Merrill v. Rokes, 54 F. 450; Band of Lakin v. National Bank (Kan.), 45 P. 587. Effect of ratification: 1 Am. and Eng. Ency. of Law, 2nd ed., p. 1213.
The court's instruction as to measure of damages was error, because it did not limit plaintiff's damages to the period of time between the date of demand, September 4, 1893, to date of trial, but permitted a recovery upon the theory that defendant's possession was wrongful from its beginning. See cases under "Nonsuit;" Wells on Replevin, sec. 534, p. 294; Farrar v. East (Ind.), 31 N.E. 1125; Wildman v. Sterritt (Mich.), 46 N.W. 657; Bell v. Keepers (Kan.), 17 P. 785.
The sale was absolute and unconditional without reservation of title. Bailey v. Fox (Cal.), 20 P. 868; Tredeman on Sales, sec. 163, p. 225 and cases cited; Thompson et al. v. Peck et al. (Ind.), 18 N.E. 16; Bell v. Keepers (Kan.), 17 P. 785; Kelly v. Kershaw (Utah), 14 P. 804, and note; Henderson et al. v. Gibbs et al. (Kan.), 18 P. 926; Jennings v. Gage et al., 13 Ill. 611; Underwood v. West, 52 Ill. 397; Smith v. Brittenham, 98 Ill. 188; Physio-Medical College of Ind. et al. v. Wilkinson et al., 9 N.E. 167 and note; Morrison v. Lods, 39 Cal. 381; Gifford v. Carville, 29 Cal. 589.
The organ, when built in the church, became a fixture and a part of the realty, and hence not subject to claim and delivery. Rogers v. Crow, 40 Mo. 91; Chapman v. Ins. Co., 4 Ill.App. 29.
Stevens & Smith, for respondent.
This is an appeal by the defendant from a judgment giving the plaintiff the possession of an organ in defendant's possession, or $ 3,000, its value, if not delivered, and for $ 410 damages. It appears from the record that the plaintiff, a corporation dealing in organs, in the city of Chicago, Ill., entered into a written contract with J. Wesley Hill, pastor of the Methodist Episcopal Church of Ogden, Utah, who represented that he was chairman of its board of trustees, with full power to contract on behalf of the church, and who as such chairman signed and delivered the contract to the plaintiff. The terms of the contract required the plaintiff to deliver and set the organ up in the church by a day named, and purported to bind the church to pay therefor $ 3,000. The church was also required to pay the freight for transporting the instrument from Detroit, Mich. It appears, further, that the plaintiff set the organ up and delivered it as required, about August 25, 1891; that on December 6, 1892, when the contract was brought to the attention of the trustees by the agent of the plaintiff, they disclaimed any previous knowledge of it, and informed him that Hill had no authority to make the contract. It also appears that the trustees had been informed by Hill that the organ was presented to the church by one P. A. H. Franklin; that the church must pay the freight for the transportation from Detroit to Ogden, that the plaintiff advanced $ 490 as freight, at the request of the trustees, and took their note therefor; that $ 100 was afterwards paid on the note; that Hill paid $ 400 on the organ; that these payments or the note have not been returned to Hill or the trustees. It also appears that in November, 1892 the trustees conveyed the church building to the defendant without mentioning the organ, and that they still continue to repudiate the contract entered into by Hill. The jury found the issues as to the possession of the organ for plaintiff, and found its value to be $ 3,000, and the damages for its detention $ 410.
There can be no doubt, from the evidence, that the plaintiff's agent was induced to sign the contract and to deliver the organ by the false representations of Hill that the board had authorized him to make the contract as its chairman, and the jury so found. When the trustees refused to ratify the contract, or to pay for the organ, the plaintiff was authorized to demand its return, and, in case it was not delivered, to institute an action for its possession, and in case possession should not be obtained, for its value and for damages. It appears that the trustees, about May 11, 1893, deeded the church to the defendant, and that the agent of the plaintiff was present. It is claimed that the church ratified the contract by that transfer. But it also appears that the trustees at the same time, by resolution, refused to ratify the contract, and informed plaintiff's agent that it must look to Hill for payment. In view of this resolution, we cannot hold that the trustees by that transfer ratified the contract.
It further appears that on September 4, 1893, the defendant upon demand by the plaintiff, refused to return the possession of the organ. This demand, it appears, was delayed about nine months after the trustees informed the plaintiff that the contract upon which it relied was unauthorized by them, and after they refused to ratify it. By this delay defendant insists the plaintiff waived its right to this action. We cannot...
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