In re Martin-Vernon Music Co.
| Decision Date | 14 November 1904 |
| Citation | 132 F. 983 |
| Parties | In re MARTIN-VERNON MUSIC CO. |
| Court | U.S. District Court — Western District of Missouri |
Elijah Robinson, for intervener.
Karnes New & Krauthoff, for trustee.
The Smith & Nixon Piano Company, of Cincinnati, Ohio, heretofore filed an intervening petition before the referee in bankruptcy, claiming the return of eight pianos alleged to be in the possession of the bankrupt at the time of the adjudication in bankruptcy, six of which are now in the possession of the trustee in bankruptcy. As two of the pianos were sold by the Martin-Vernon Music Company before the institution of the proceedings in bankruptcy, and the claimant has filed proof of claim therefor as a debt against the estate, they are not in the controversy herein. The referee having disallowed the claim as to the remaining six pianos, the intervener excepted to this finding, and the same has been certified to this court for review.
The goods in question were shipped, as claimed by the interpleader, under a written contract of date February 2 1904. There being no latent ambiguity as to the terms of the written contract, must of the parol evidence offered by the interpleader and heard by the referee respecting the understanding of the claimant was inadmissible. Burress v. Blair, 61 Mo. 133. By the first paragraph of the written agreement the claimant, the Smith & Nixon Piano Company, agreed to furnish to the Martin-Vernon Music Company Smith & Nixon and Ebersole pianos, on memorandum, at the following prices (the prices of the pianos are then stated). By the second paragraph the Martin-Vernon Music Company agreed to pay for every piano they sold, cash, and were to receive for advertising purposes on the above prices a special discount of $15 on the Ebersole piano and $25 on the Smith & Nixon piano. By the third paragraph it was agreed between the parties that the Martin-Vernon Music Company should have full control of a certain designated territory in which the Smith & Nixon Manufacturing Company agreed not to give any other prices to any other dealer. The goods were shipped on the 6th and 13th days of February, 1904. The bills rendered therefor have the following caption: 'The Smith & Nixon Piano Company, Sold to the Martin-Vernon Music Company, Kansas City, Mo. ' Then follows a description of the goods shipped. There is not a word in the agreement about the goods being delivered under consignment. No commission whatever is fixed or compensation provided for the Martin-Vernon Music Company. It is on its face a bald undertaking on the part of the claimant to furnish their pianos to the Martin-Vernon Music Company at a fixed price, to be paid for when sold; and therefore, when sold, the purchase price became a fixed debt. There is no provision in the contract that the Martin-Vernon Music Company could at any time return the pianos unsold. The Martin-Vernon Music Company, under this agreement, could sell the pianos at any time, at any price they might see fit, pocketing the profits, if any, and standing the loss, if any.
It was suggested by interpleader's counsel on the argument that the term 'on memorandum,' employed in the contract by usage of the trade, meant that the goods were shipped under a contract of consignment. If it were conceded that the term is susceptible of explanation by parol evidence, there is no evidence in this record to support counsel's contention. The witness Bolze, introduced by claimant, over the objection of counsel for the trustee stated that 'these pianos were shipped on memorandum, what we term an approval. ' The witness James M. Martin, who was at the time acting for the Martin-Vernon Music Company, in the course of his examination testified, over the objection of counsel for the trustee, 'My understanding is that the pianos were sent on memorandum of approval. ' Conceding this to be admissible, no other reasonable import can be given thereto than that the pianos shipped, with the prices stated, were subject, on receipt, to the approval of the Martin-Vernon Music Company as to whether they would accept them on inspection. As already stated, the Martin-Vernon...
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In re Smith & Nixon Piano Co.
...he had succeeded to the bankrupt's title. A decision of the referee in favor of the trustee was affirmed by the District Court (132 F. 983). At hearing below the facts were not disputed. There was no conflict in the evidence, which consisted of a contract, two invoices, a letter, and some o......