Frederick Piano Co. v. Stanley

• Citation: 218 S.W. 882
• Decision Date: 28 February 1920
• Docket Number: No. 2474.,2474.
• Parties: FREDERICK PIANO CO. v. STANLEY et al.
• Court: Missouri Court of Appeals

218 S.W. 882

FREDERICK PIANO CO. v. STANLEY et al.

No. 2474.

Springfield Court of Appeals. Missouri.

February 28, 1920.

Appeal from Circuit Court, Pemiscot County; Sterling H. McCarty, Judge.

Action by the Frederick Piano Company against H. L. Stanley and J. B. Westbrook, copartners doing business under the firm name of the Stanley Piano Company. From judgment for defendants on their counterclaim, plaintiff appeals. Reversed, and remanded for retrial as to the counterclaim and plaintiff's offset.

Fred L. Byrkit, of Kennett, and Ward & Reeves, of Caruthersville, for appellant.

R. J. Smith, of Campbell, for respondents.

STURGIS, P. J.

This suit as tried is in replevin for two certain pianos; but, as defendants admitted plaintiff's right to recover same, the controversy centered on defendants' counterclaim and plaintiff's offset thereto. The counterclaim was principally for commissions alleged to be due to defendants for selling 10 other pianos for plaintiff. The trial resulted in a verdict and judgment for defendants on their counterclaim, and plaintiff appeals.

It appears that plaintiff consigned to defendants 16 pianos for sale by defendants as its agent. Defendants were to have a commission on the sale of each piano sold by them, the amount of which and the conditions on which same was to be due are fixed by a written contract between them dated May 9, 1916. The evidence is not so voluminous, but it is unsatisfactory and difficult to understand. Each sale of a piano constitutes a distinct transaction, carrying with It a commission varying in amounts and whether earned or not depending on the facts connected with that transaction. The defendants, however, on whom the burden of proof rested, made little attempt to prove each item of commission separately, but lumped them together, assuming that if he proved one item to be due then all the others were due. The pianos were all sold on time payments, but no proof was made as to the cost price, the sale price, or the amounts, number, or length of time covered by the payments on each or any piano. Under the contract the defendants' commission was not to be earned until and unless there was collected and paid to plaintiff the cost or consigned value Of the pianos. It was not claimed that this was done in any instance, and defendants based their claim for a commission on the fact that the pianos were sold to solvent customers, and that plaintiff then took the business out of their hands and did its own collecting. Such proof, however, would not of itself entitle defendants to a commission, since the contract provided that all installment notes should be payable to or indorsed to plaintiff, and be forwarded to it, and all money collected should be deposited to plaintiff's credit and forwarded to it. The contract then provides:

"But nothing hereinbefore or hereinafter contained shall be construed as divesting consignor of its right to collect directly from purchasers or lessees, and the consignee doth hereby expressly agree that the said consignor may, at any time, without notice, collect direct from such customer or lessee, and in that event a reasonable charge for services, costs, collections and disbursements incurred, including attorney's fees, may be made by the said consignor and deducted from the moneys collected, and in the event of the said consignor exercising its right to collect, directly from purchasers or lessees, the consignee agrees to desist from making collections and to render the said consignor every assistance in making the same."

It may be that if plaintiff took over the exclusive right to collect it could not by its neglect in trying to collect deprive defendants of their commission, but that was not the theory of defendants' recovery. In fact there is no evidence, except in one or two cases, that plaintiff took the collection of the installment notes out of defendants' hands.

As showing the loose way in which the case was tried and the lack of substantial evidence supporting defendants' claim, except mere general statements and conclusions of witnesses, we quote from defendants' evidence:

Witness: I have an item for commission due from G. M. Johnson sale. I sold that piano and claim $98 on account of commissions on the sale of that piano. That amount is due.

Q. Could you have collected that account if the plaintiff had not interfered with you? Mr. Reeves: I object to that as calling for an opinion of the witness.

The Court: The objection is overruled.

Witness: I was collecting on the account fairly well. I considered it a solvent account.

Q. After the plaintiff had ordered you not to collect that from him and ordered him not to pay you, could you make any further collections on that? A. No, sir.

Mr. Reeves: I object to that for the reason that it hasn't been shown that the plaintiff made any such order to anybody.

The Court: The objection is overruled.

Witness: We have items here for commissions due us on pianos sold as follows: piano sold to W. A. Wagoner, commissions $97; piano sold to Bailey & Uttley, commissions, $72; piano sold to A. W. Goodwin, commissions, $152; piano sold to Maude E. Bailey, commissions, $69; piano sold to Frank Edmunston, commissions, $35; piano sold to Will Saris, commissions, $21; piano sold to D. 0. Porter, commissions, $107; piano sold to Tom Collins, commissions, $70.

Mr. Smith: The total amount is $734 on the items that I have just named there.

Q. That amount is due you on account of commissions? A. Yes,.sir; I am speaking for the Stanley Piano Company.

We have searched the record in vain for what plaintiff did to "interfere" with defendants making collections, and find nothing except letters written to one or two purchasers. As to the other purchasers, the record is silent on this point.

It also appears that in at least three or four sales on installments the purchasers, after making a few small payments to and which were retained by defendants, refused to make any further payments, and plaintiff took back the piano sold. Certainly plaintiff did not do this when the purchaser was solvent and meeting his payments as they came due. At least there is no proof to this effect, except the mere general statement made by plaintiff with reference to a particular sale to E. E. Mahar that—

"I would have collected on it had it not been for any special calamity which sometimes happens in any business. The history of these people would lead us to believe that we would naturally have counted on collecting it. They were responsible people and could pay."

The instructions given for defendants are about as general and indefinite as the evidence. The jury was told that—

If defendants "did sell certain pianos under and according to the terms of the said contract, and you further find that plaintiff through its agents, representatives and attorneys, interfered with the sales made by defendants, and so conducted itself to cause the purchasers of the instruments sold by defendants not to pay for the instruments, and if you find that such conduct on the part of the plaintiff caused the defendants to be damaged thereby, then you should find for the defendants on their counterclaim in such sum as you may find they may have been damaged, not to exceed the amount sued for in defendants' answer and counterclaim."

Certainly this instruction is very indefinite, and gave the jury a wide field in which to speculate as to what constituted a sufficient interference with the sales made by defendants to make plaintiff liable. The jury may have, and it seems did, conclude that plaintiff had no right to collect its own notes or take any steps to enforce payments by retaking the piano sold—the very thing the contract provided they could do.

The plaintiff sued in replevin for 4 pianos. One of these, No. 122,691, was not taken under the replevin writ because not found in defendants' possession. As to this piano defendants testified:

"We sold piano 122691 to some one for $300, and took a mortgage or lease on it, and the company asked us to send that lease, but I don't think that we sent it, because the fact of the matter is that it interfered with our business, and at the time we consulted our attorney, and we figured that we might lose out, and we had no chance to come back on them. It was reported to the company. The company asked us for the contract, but we never sent it."

The plaintiff's evidence is also to the effect that this piano was never accounted for by defendants, either in notes, money, or otherwise. That defendants should account for or be charged with the value of this piano seems clear. The defendants, however, recovered the full amount of the commissions claimed, with no deductions whatever.

The case must be remanded for new trial, and there is no need for commenting further, except to say that we find no basis for plaintiff's claim that defendants were required to collect in cash at the first payment at least 30 per cent. of the sale price. The contract provides that the pianos must be sold for at least 30 per cent. above the consigned value, but nothing is said as to the 30 per cent. being required to be paid in advance.

We also suggest that, as the replevin feature of this case is entirely settled and nothing remains except an accounting between the parties, the case might properly and more satisfactorily be tried by referee. As we understand it, there were 13 piano sales involved, on each of which payments were made in varying numbers and amounts. Most of the amounts were retained by defendants, and were or should be credited on the commissions, if any, due defendants. Each sale was a separate transaction, and the commissions earned, if any, and the payments made to defendants and amounts paid over to plaintiff should be arrived at separately. The attempt to try the case before a jury has left it in inextricable confusion.

The case will therefore be reversed and remanded to be retried as to the...