Hollenberg Music Co. v. Berry

• Decision Date: 23 December 1907
• Citation: 106 S.W. 1172
• Parties: HOLLENBERG MUSIC CO. v. BERRY.
• Court: Arkansas Supreme Court

106 S.W. 1172

HOLLENBERG MUSIC CO. v. BERRY.

Supreme Court of Arkansas.

December 23, 1907.

Appeal from Circuit Court, Craighead County; Frank Smith, Judge.

Action by the Hollenberg Music Company against Maggie Berry. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

Appellant brought suit in replevin for a piano, alleging in its complaint that it had contracted to sell to the appellee a certain piano under a written contract, on the installment plan, with retention of title; that there was a default in the payment at maturity of certain of the installments, whereupon the appellant was entitled to possession and damages for the retention of the instrument. The usual allegations in replevin were made. Appellee answered, admitting execution of the contract, denying right of possession, and setting up divers violations by appellant of its warranty, and counterclaiming for money already paid. At the time of the purchase of this piano it was a fact, known to appellant's selling agents, that for several years appellee had owned a home in North Jonesboro where she had for a number of years conducted a bawdy house, and that it was her intention to place the piano in her bawdy house, and to use it for the purpose of taking in money by the nickle-in-the-slot process. The court instructed the jury as follows: "If the plaintiff or its selling agent, at the time of the execution of the contract for the purchase of the piano, knew that the defendant was a keeper of a bawdy house, and that it was her intention to keep and use the piano in her said bawdy house, the plaintiff could not recover in this action." Appellant asked, and the court refused, the following: "Mere knowledge on the part of the plaintiff or its selling agent of the character of the defendant, and that she intended to use the piano in her bawdy house, was not of itself sufficient to avoid the contract, but that, before they would be justified in finding the contract void, they must find from the evidence that plaintiff in some measure participated in the unlawful conduct of the defendant in running a bawdy house, or that her wrongful conduct was a part of the consideration inducing the plaintiff to sell her the piano." Exceptions were duly saved to ruling of the court in giving and refusing requests for instructions. The verdict and judgment were for appellee, and appellant duly prosecutes this appeal.

Mathes & Westbrooke and C. P. Harnwell, for appellant.

WOOD, J. ...