Keefe v. Bush & Lane Piano Co.

• Decision Date: 03 June 1929
• Docket Number: April Term.,53,Nos. 52,s. 52
• Citation: 247 Mich. 82,225 N.W. 585
• Court: Michigan Supreme Court
• Parties: KEEFE v. BUSH & LANE PIANO CO. SAME v. FARRAND PIANO CO.

247 Mich. 82

225 N.W. 585

KEEFE

v.BUSH & LANE PIANO CO.

SAME

v.FARRAND PIANO CO.

Nos. 52, 53, April Term.

Supreme Court of Michigan.

June 3, 1929.

Error to Circuit Court, Ottawa County; Orien S. Cross, Judge.

Suits by G. J. Keefe, administrator of the estate of W. D. Keefe, deceased, against the Bush & Lane Piano Company and against the Farland Piano Company. Decree for defendants, and plaintiff brings error. Affirmed.

Argued before the Entire Bench.

Leo C. Lillie, of Grand Haven, for appellant.

Charles H. McBride, of Holland, for appellees.

NORTH, C. J.

Two suits brought by plaintiff against the defendants have been consolidated. In March, 1919, plaintiff's decedent, W. D. Keefe, consummated contracts with the respective defendants whereby he undertook the sale of pianos manufactured by them and received by him on consignment. The decedent will be referred to herein as the plaintiff. By the terms of the contracts plaintiff was to settle for the pianos consigned to him within four months from the date of shipment. The prices of the pianos for which the plaintiff was to account were fixed by a list agreed upon between him and the respective defendants; but the prices at which the pianos were sold to the ultimate purchasers were fixed by Mr. Keefe. Some of the pianos were sold for cash and some were disposed of on leases or title retaining contracts. Under the Bush & Lane contract, unpaid portions of the purchase price bore interest at 6 per cent. per annum beginning four months after the date of shipment, and the Farrand Company contract provided for a like interest charge beginning 60 days after shipment. Beginning four months after shipment plaintiff was also charged with a ‘carrying charge’ one-half of 1 per cent. per month on such unpaid balance until the portion of the contract price which belonged to the manufacturers was paid in full. Thereupon any unpaid balance on such contracts became the property of the plaintiff. This together with certain specified commissions constituted Mr. Keefe's profit or compensation. After this contract had been in effect between the parties a little over two years, the plaintiff died (May 15, 1921), and at that time there were upwards of 40 of these sales contracts outstanding. Under the provisions of plaintiff's contracts with the defendants, the leases or sales agreements entered into with the ultimate purchasers were taken in the name of ‘Manufacturers Agency of Chicago, Illinois'; but each contract was forthwith assigned by Mr. Keefe to the company whose instrument was sold. All subsequent payments were made to the assignee. On June 30, 1927, the administrator of decedent's estate instituted these suits claiming a substantial balance was due to decedent from each of the defendants. This claim is founded upon two contentions: (1) That the ‘carrying charges' of one-half of 1 per cent. provided for in the contracts between D. W. Keefe and the defendants are usurious, and in consequence thereof the defendants are not entitled to make any interest charge against Mr. Keefe; and (2) that in any event thr relationship between these parties was terminated immediately after Mr. Keefe's death by the act of the defendants in sending their representative who took over the stock on hand, and that thereafter the charges now insisted upon by the defendants could not lawfully be deducted from the amounts that otherwise would have accrued to the estate of the deceased in the meantime. The case was heard before the circuit judge without a jury, a finding of facts and law was made and filed, and a judgment of no cause for action rendered. Plaintiff reviews by writ of error.

I. Are these contracts usurious because they provided that each unsettled account should not only bear interest at 6 per cent. per annum, but that plaintiff should also be chargeable with a ‘carrying charge’ of one-half of 1 per cent. per month computed on the amount unpaid on the account at the end of the credit period? The contracts between these parties provide:

‘All the pianos that are now or shall hereafter be furnished me (W. D. Keefe) by you are to be held upon consignment and sold on such terms as you may direct.

‘All moneys, notes or other property, received on the sale of any piano shall belong to you as hereinafter provided. Customer's notes or leases shall be made on blanks furnished by me and secured by lien on the instrument sold, assigned payable to your order, payment as stipulated in said notes and leases to be guaranteed by me and subject to your approval. * * *

‘I agree to settle with you for all pianos consigned me within four months from date of shipment and to pay you interest at the rate of six per cent. per annum after sixty days (after four months in Bush and Lane contract) from date of shipment, but in event that you should agree to extend...