J. W. Jenkins Music Co. v. Willison

• Decision Date: 17 February 1919
• Docket Number: No. 13119.,13119.
• Citation: 209 S.W. 987
• Parties: J. W. JENKINS MUSIC CO. v. WILSON.
• Court: Missouri Court of Appeals

209 S.W. 987

J. W. JENKINS MUSIC CO. v. WILSON.

No. 13119.

Kansas City Court of Appeals. Missouri.

February 17, 1919.

Appeal from Circuit Court, Jackson County; Thomas B. Buckner, Judge.

"Not to be officially published."

Replevin by the J. W. Jenkins Music Company, a corporation, against B. G. Wilson. From a judgment for defendant on a trial de novo, reversing a judgment for plaintiff before a justice of the peace, plaintiff appeals. Reversed and remanded.

Stubenrauch & Hartz, of Kansas City, for appellant.

Ira B. Burns, of Kansas City, for respondent.

TRIMBLE, J.

This is an action in replevin to recover possession of a player piano. The suit originated in a justice court, and, under the writ, the piano was taken from the defendant and turned over to plaintiff. After trial In the justice court the case was appealed to the circuit court where, upon trial anew before a jury, verdict and judgment were for defendant. Plaintiff has appealed.

It seems that in April, 1914, defendant purchased of the plaintiff a player piano" (not the one in suit) at the price of $410, paying $25 cash down, and giving a chattel mortgage thereon to secure the balance of the price in monthly installments of $10 each, with interest. The sums paid by defendant on the piano amounted to $205. About March 1, 1916, he was delinquent on four monthly payments, being those for November, December, January, and February, aggregating $40 and interest thereon. Defendant was not satisfied with the piano, claiming that it was not as represented, or did not come up to the stipulated standard in some way; and, in pressing defendant for payment of his delinquent installments, plaintiff wrote defendant that they understood through defendant's brother that he desired to make an exchange for another instrument, and that they would be glad to see him if he were interested in an exchange. In response to this, defendant went to plaintiff's place of business, and certain negotiations were had between plaintiff and defendant, whereby a new player piano, the one now in controversy, was sent out to defendant's home and the old piano brought back.

The parties differ widely as to the agreement made under which the new piano was delivered and the old one returned. Plaintiff's evidence is that they agreed upon the price of the new piano, placing it at $435; that defendant was to be credited with payments made on the old piano in the sum of $112.40, arrived at in this way: From the $205, paid on the old contract, was to be deducted $23.60, because it was interest, and $3 per month rent of the old piano for 23 months, aggregating $69, making a total deduction of $92.60, which, taken from $205, left $112.40 to be credited on the $435, the price of the new piano. Furthermore, plaintiff's evidence was that defendant was to give a new chattel mortgage on the new piano to secure the balance, payable in monthly installments of $10, at 8 per cent. interest; that the mortgage was not drawn up or signed then because defendant wanted his wife to select the particular instrument she desired, and the number of the instrument could not be inserted in the mortgage until the instrument had been selected; that defendant and his wife afterward selected the instrument, but defendant, being in a hurry, could not wait until the mortgage was signed, but, upon his promise to come in next day and sign it the new piano was sent out to his house; that, after possession of the new piano was thus obtained, defendant refused to execute the new mortgage.

Defendant, on his part, contended that there was no agreement to purchase a new piano, but only an agreement that a new piano should be exchanged for the old one because the latter was unsatisfactory; that he agreed to pay the $23.60 interest on the old mortgage, but nothing else; and that he refused to execute the new mortgage when same was demanded of him because plaintiff called for a greater price on the piano, and also exacted $69 rent for the old piano during the time he had it; that he never agreed to execute a new mortgage, but understood that he was to go on paying as he had done under the old contract—i. e., to pay the balance due on the contract for the old instrument.

Plaintiff's main contention is that under defendant's own testimony there was no contract...