Junius Hart Piano House, Ltd. v. Stewart

• Decision Date: 24 January 1927
• Docket Number: 25890
• Court: Mississippi Supreme Court
• Parties: JUNIUS HART PIANO HOUSE, LIMITED, v. STEWART. [*]

111 So. 106

145 Miss. 488

JUNIUS HART PIANO HOUSE, LIMITED, v. STEWART. ^[*]

No. 25890

Supreme Court of Mississippi

January 24, 1927

Division A

. (Division A.)

EVIDENCE. Testimony of agent's representations, held erroneously admitted in replevin for piano sold under stipulations against agreements not contained in written contract.

Where contract for sale of piano provided that it was subject to principal's approval, and stipulated that no verbal or written agreement not contained therein would be recognized testimony relative to agent's representations that piano contained mandolin attachment was erroneously admitted, in action in replevin to recover piano, particularly since instrument had been retained without giving notice to principal that it was unsatisfactory or not in full compliance with terms of sale.

HON. J Q. LANGSTON, Judge.

APPEAL from circuit court of Pearl River county, HON. J. Q. LANGSTON, Judge.

Action in replevin by the Junius Hart Piano House, Limited, against F. E. Stewart. Judgment for defendant and plaintiff appeals. Reversed and remanded.

Judgment reversed, and cause remanded.

J. E. Stockstill and Grayson B. Keaton, for appellant.

The contract in this case was taken by an agent and became final when approved by the Junius Hart Piano House. The contract when approved by the company had nothing in it about furnishing a mandolin attachment for the piano sold. The representations of the agent, A. J. Rogers, after reducing the contract to writing, which were not contained in same, were not admissible. J. B. Colt Co. v. Odom, 101 So. 853; J. B. Colt Co. v. McCullough, 105 So. 744.

The contract was properly complied with in the shipment and delivery of the piano. Defendant failed to make the payments and then upon the institution of replevin suit and the seizure thereof, he retained it under bond, added to the use and wear and tear and destruction of the piano, and now claims for the first time a failure of consideration.

J. M. Morse, Jr., for appellee.

This was an executory contract. The Junius Hart Piano House by and through its agent, Mr. Rogers, represented to Mr. Stewart that the piano had as an integral part thereof an attachment which would change piano music into string band music and he showed them a picture of the piano, the mandolin attachment being a part that went in on the inside of the piano and did not show from a mere inspection of the picture. Mr. Stewart, relying upon the representations made by the agent of the appellant, signed the contract. There is a difference between an executed contract and an executory contract. See Morse v. Moore, 23 A. S. R. 783 and notes; 13 C. J., page 245; Isadore Strauss & Son v. Nat'l Parlor Furniture Co., 75 Miss. 343.

When the piano came, Mr. Stewart examined the piano and found that it was not the piano which he agreed to buy; to-wit, a piano with a mandolin attachment. The same agent, Mr. Rogers, representing the appellants, called upon Mr. Stewart and stated that while the attachment should have been placed in the piano at the factory, yet that appellant had a man who was doing that kind of work for the company and that he, representing the company, would have him put it in. On that promise Mr. Stewart let appellant's agent take the old piano.

There was nothing in the case at bar to bring the case within any of the rules of law as set out by the appellant. A misrepresentation was made by the agent. The misrepresentation was called to the attention of the agent. The agent promised to rectify and failed to do so. The act of the agent in this case constitutes a fraud. See Hirschburg Optical v. Jackson, 63 Miss. 21; Folkes v. Pratt, 86 Miss. 254; Strauss v. Furniture Co., 76 Miss. 343 and Howie v. Platt, 83 Miss. 15.

While the appellee was willing to adjust the matter by allowing the appellant to install the attachment, if it could be done, relied upon the statements made by the agent of the appellant, and allowed his old piano to go as part payment, yet he waived none of his rights by so doing. See Underwood v. Wolf, 131 Ill. 425, 19 A. S. R. 40.

But, says the appellant, they are not bound by the statements of the agent, because the contract is so worded that no verbal or written agreement or understanding not contained therein would be recognized. The statement made by the agent of the appellant that the particular kind and number of piano did have as an integral part thereof this attachment was a fraud and such a fraud as would vitiate the contract. Folkes v. Pratt, 86 Miss. 254. See, also, Bloodsworth, v. Stevens, 57 Miss. 475; Bates v. Snider, 57 Miss. 497; Gabbert v. Wallace, 66 Miss. 618; Dreyfus v. Cage, 62 Miss. 733.

J. E. Stockstill and Grayson B. Keaton, in reply, for appellant.

Appellee's statement that the act of the agent in this case constituted fraud has no application here; mainly for the reason that the contract is merely a lease contract with the conditional right, of course, to pay the full amount and become the owner of the piano. He accepted the instrument, played it the first day he received it and made no demands on the company to furnish the attachment or to take back the property. Under the contract there is nothing in the case at bar in the testimony to show that the piano was not strictly up to the kind and quality ordered.

Stewart at all times had notice by the written contract itself that Rogers had no authority except to induce sale of pianos and take the signature of any purchaser for the printed contract. 24 R. C. L., section 524, page 246.

OPINION

COOK, J.

The appellant, Junius Hart Piano House, Limited, instituted an action in replevin to recover possession of a certain piano which had been previously sold by the appellant to the defendant, F. E. Stewart, and, from a verdict and judgment in favor of the defendant, this appeal was prosecuted.

On October 31, 1924, the appellant's local representative at Poplarville, Miss., negotiated a contract to sell and deliver to the appellee one Kimball player piano, style No. 44, at and for the price of six hundred seventy-five dollars, two hundred and fifty dollars of which was to be paid...