James Music Co. v. Bridge

• Decision Date: 18 February 1908
• Parties: JAMES MUSIC CO. v. BRIDGE ET AL.
• Court: Wisconsin Supreme Court

134 Wis. 510

114 N.W. 1108

JAMES MUSIC CO.

v.BRIDGE ET AL.

Supreme Court of Wisconsin.

Feb. 18, 1908.

Appeal from Municipal Court of Marathon County; Louis Marchetti, Judge.

Action by the James Music Company against Silas N. Bridge and others. Judgment for plaintiff. Defendants appeal. Affirmed.

Replevin for a number of pianos, organs, and piano stools. In and prior to the month of September, 1905, the parties conducted rival stores for the sale of musical instruments in the city of Wausau. On the 29th day of that month the defendants executed and delivered to one F. B. Peckham a bill of sale of their stock of instruments and stools, together with the good will of the business and some other property (the instruments and stools being the same now in suit), for the expressed consideration of $1,300, and at the same time assigned and delivered to Peckham the lease of the store in which the goods were where appellants were doing their business. Peckham then went to the plaintiff's store and sold the pianos, organs, and stock to plaintiff for $1,000 in cash, and immediately returned to defendants' store and paid the defendants $400 in cash, and delivered them his note for $406 due in 90 days--he had previously given to defendants two 90-day notes for $332 and $162, respectively, making in cash and notes the sum of $1,200; and it was then agreed between defendants and Peckham that he (Peckham) should not take the piano wagon and certain other property which was included within the bill of sale, and should be credited with $100 therefor. Mr. E. M. James, president of the plaintiff company, on the same day came to defendants' store and looked over the goods. The defendants were surprised to find that he had purchased the goods, and made objections to his taking the goods until the price was fully paid in cash. During the next few days several conversations took place between Mr. James and the defendants. Mr. James attempted to take possession of the goods and the defendants declined to surrender either the goods or the store, and plaintiff finally brought this action of replevin. By their answer the defendants claimed that there was a fraudulent conspiracy between Mr. James and Peckham by which Peckham was to represent to defendants that he proposed to purchase the goods and carry on the business himself, whereas, in fact, he was to purchase them as agent for James; and, further, that a part of the scheme was that Peckham should pay defendants only $400 in cash, and give his notes for the balance, and then turn the goods over to James as an innocent purchaser, and depart from the state, leaving the defendants to pursue their remedy on the notes in the state of Illinois. The answer further claimed a lien on the goods for $800 with interest, and demanded judgment for that sum against the plaintiff. No rescission of the contract was sought. The action was tried by the court, and a brief opinion was filed in which the court said that the sale to Peckham was tainted with fraud, but that plaintiff was not a party to Peckham's fraud, and had a right to make the purchase relying on the bill of...