Ludden & Bates Southern Music v. Hornsby
Decision Date | 10 September 1895 |
Court | South Carolina Supreme Court |
Parties | LUDDEN & BATES SOUTHERN MUSIC HOUSE. v. HORNSBY. |
Lease or Mortgage op Personalty — Replevin —Counterclaim.
1. An instrument purporting to be a lease of a chattel for a term of months, at a stipulated monthly rental, and containing a proviso that the lessee "may, at any time within said term of rental, purchase * * * by paying the above valuation therefor; and, in that case, only, all amounts theretofore paid as rental or advance deposit shall he deducted from the price, "—is a lease, and not a mortgage.
2. In an action to recover possession of a specific chattel, held under a lease which in terms provided that at any time the lessee might purchase the property, and be allowed, as a deduction from the price thereof, all amounts theretofore paid as rental, the defendant may counterclaim in equity, on the ground of fraud in the execution of the contract, for a cancellation thereof, or that the title to the chattel be adjudged in him, or that he be permitted to hold the property until the money paid by him has been refunded.
Appeal from common pleas circuit court of Richland county; Benet, Judge.
Action in replevin by the Ludden & Bates Southern Music House, a corporation, against Martha A. Hornsby. Defendant answered, setting up a counterclaim in equity, and, upon reference of the case to a master, plaintiff's demurrer thereto was sustained. From an order of the circuit court reversing the ruling of the master, and ordering the case back to him for trial, plaintiff appeals. Affirmed.
The following are the exceptions referred to in the opinion:
The order referred to is as follows: "The plaintiff, a corporation duly incorporated under the laws of the state of New Jersey, brings its action in claim and delivery against the defendant, and alleges that, under the terms of a 'lease, ' hereto attached as an exhibit, it leased a certain musical instrument, to wit, an organ, to the defendant, upon the terms, and subject to the conditions, therein particularly set forth, which permitted her to buy said organ for the sum of one hundred and fifteen dollars. The defendant, in answering said complaint, admits the execution of the paper termed a 'lease, ' and alleges that certain payments, aggregating sixty-five dollars, have been made by her under its terms; that, after paying said sum, she has discovered that a fraud has been practiced upon her by the plaintiff, whereupon she has refused to make further payments, and has offered to restore the organ to plaintiff upon the return of the money obtained from her by reason of the fraud and imposition complained of. The alleged fraud, as charged in the answer, amounts to this: That at the time of, and before, the signing of the lease under which plaintiff proceeded, the plaintiff represented to defendant that the instrument in suit was a new one, which had never been out of its storeroom, and that it was, in all respects, in good order; whereas she has discovered that it is a worn and second-hand instrument, worth no more than the sum already paid by her to plaintiff, whereupon shehas refused to pay any more of the installments claimed by said plaintiff. Thereupon a consent order was made, referring the case to the master for Richland county, with instructions to take the testimony and report upon all matters of law and fact At the first reference held by that officer the plaintiff interposed an oral demurrer to the answer, on the ground that the affirmative defenses set up in the answer did not state facts sufficient to constitute a cause of action. At first the master overruled the demurrer, but, after the testimony was all in, he entertained and sustained it, and, having dismissed the affirmative defenses interposed in the answer, reported to this court his finding that the demurrer was well taken. Upon exceptions having been filed by the defendant, the case comes before me for consideration.
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