Mohler v. Guest Piano Co.

• Citation: 186 Iowa 161,172 N.W. 302
• Decision Date: 15 May 1919
• Docket Number: No. 31201.,31201.
• Parties: MOHLER v. GUEST PIANO CO.
• Court: Iowa Supreme Court

186 Iowa 161

172 N.W. 302

MOHLER

v.GUEST PIANO CO.

No. 31201.

Supreme Court of Iowa.

May 15, 1919.

Appeal from District Court, Polk County; W. H. McHenry, Judge.

The parties contracted that the piano company should retain title to a piano delivered to appellant, Mohler, that the instrument should be paid for in partial payments, and that on default in such payments the company might repossess itself of the instrument. Payments were defaulted and possession accordingly taken. In this suit appellant sought to recover back all the payments she had made before the instrument was retaken. Demurrer to her petition was sustained, and she appeals. Affirmed.

Evans and Preston, JJ., dissenting in part.

Keithley & Bump, of Des Moines, for appellant.

Henry & Henry, of Des Moines, for appellee.

SALINGER, J.

I. As a supersession to the contract originally made, the parties made a second one. The price was $325. The first contract was made on April 15, 1909; the second on April 28, 1911. At the time the second one was made, the payments then made amounted to about $116.26. The second contract took no account of part of this payment made. The total payments, including said $116.26, aggregate $277.25. Counting time of possession most favorably to appellant, by starting in from the time the second contract was made, and she had possession of the instrument from April 28, 1911, to the time at which the company retook the instrument--something like four years and a half. It is not strained to assume that, in addition to losing the use of this instrument for that time, the company suffered some loss by the depreciation occurring during that time. The petition to which the demurrer was sustained does not in terms refer to use and depreciation, makes no tender on their account, and demands repayment of every dollar plaintiff has paid on the contract, to wit, $277.25. One ground of the demurrer is that--

“The retaking of the possession of the said piano by means of a writ of replevin at a time when payments attached to plaintiff's petition were in default does not entitle plaintiff to a recovery of the sums already paid on the purchase price.”

[1] Let us concede for present purposes that the petition of the plaintiff entitled her to a repayment of part of the sums she had paid. Is her petition demurrable because she demanded repayment of all she had paid? Concede, for the sake of present argument, that the vendor may not have both the property and the payments; may the vendee have the use of the property, return it in a depreciated condition, and then recover all that she has paid? Appellant concedes in her argument here that something was due the company for use and depreciation. Every case cited by her and the many more we have examined all agree that, even if repayment is due, it is the sum remaining after deducting a reasonable allowance for use and depreciation. See Quality Shop v. Keeney, 57 Ind. App. 500, 106 N. E. 541;Raymond Co. v. Kahn, 124 Minn. 426, 145 N. W. 164;Latham v. Sumner, 89 Ill. 234, 31 Am. Rep. 79;Rayfield v. Van Meter, 120 Cal. 416, 52 Pac. 666;Preston v. Whitney, 23 Mich. at 266. All these cases hold that permitting a recovery without such deduction would permit the defaulter to profit by his default. The amount that may be recovered back is the one due after fair deduction for use. Hill v. Townsend, 69 Ala. 286; Pierce v. Staub, 78 Conn. 459, 62 Atl. 760, 3 L. R. A. (N. S.) 785, 112 Am. St. Rep. 163. The party in default must make tender by way of credit of what is a proper reduction for use and depreciation. Hays v. Jordan, 85 Ga. 741, 11 S. E. 833, 9 L. R. A. 373;National Co. v. Cervone, 76 Ohio St. 12, 80 N. E. 1033;Hamilton v. Singer, 54 Ill. 370;Commercial Co. v. Campbell, 111 Ga. 388, 36 S. E. 756. If the vendee may recover, it is payments made, less the damages sustained by the vendor. Quality Shop v. Keeney, 57 Ind. App. 500, 106 N. E. 541. In Hays v. Jordan, 85 Ga. 741, 11 S. E. 833, 9 L. R. A. 373, it is held that, where the equity jurisdiction is exercised, the vendor may retain only so much as will compensate him. In argument here appellant concedes that at all events not more is owing than the payments she has made, “less whatever damages or depreciation of the piano,” and she concedes that the true rule is to allow the vendee to recover the payments made, less reasonable compensation to the vendor for the use of the property and damages thereto.

[2] We have said that the contract makes no reference in terms to use and depreciation. But, as seen, the law does take these elements into consideration in a suit to recover back the payments made. That law is part of the contract, and thus supplies the omission to write these elements into the contract. The case on demurrer then stands precisely thus: The petition declares that a certain sum has been paid; that an allowance for use and depreciation should be deducted from that sum; it makes no tender of that reduction; it makes no statement of how much should be allowed, and thereupon demands judgment for the payments made without any deduction for use and depreciation. Why is it not true that the facts pleaded do not entitle the plaintiff to the relief demanded?

[3] The court was obliged to either overrule or sustain the demurrer in toto, and to do this on the petition as the pleader had seen fit to frame it. The court could add nothing to nor take anything from the pleading in aid of the ruling on the demurrer interposed to the pleading. It found a petition, which not only confessedly demanded more than was due, but left in darkness how much more than was due was being claimed. The petition contented itself with stating that the total of the payments was a certain sum, that some reduction was due for use and depreciation, and that judgment should be given for the total of the payments made. In Case v. Railway, 166 N. W. 465, a claim for $368.70 was made. The defendant urged as a complete defense that a judgment in garnishment had ordered it to pay part of this amount to some one other than the claimant. We held that this answer was demurrable, because it did not constitute a complete defense; that defendant framed its own defense, and the court could not reframe it, and, on demurrer being interposed, was bound to pass upon the plea as defendant had tendered it; that, though the partial sequestration by the garnishment judgment gave the defendant some rights, it was not the right to have the plaintiff go hence without any recovery; that certainly plaintiff was entitled to recover so much of the sum claimed as the garnishment judgment did not profess to touch; that hence a plea of that judgment as a complete defense was demurrable, because it was no such defense, that the only question tendered by the demurrer was whether the judgment should defeat the claim of the plaintiff in its entirety; and that by sustaining the demurrer the court ruled rightly that defendant was not entitled to the relief it sought.

[4] The sole answer of the appellant is that the petition is not demurrable for having failed to take notice of any reduction for use and depreciation, because the vendor had the right to plead these “as an offset or in a counterclaim to this suit,” and that it was then for the jury to determine what should be allowed for use and depreciation. It is true that in a suit on the equity side the chancellor may mold a decree which allows a recovery back of payments made, by deducting from the allowance made such sum as is found to be due for use and depreciation. It is true that in Hays v. Jordan, 85 Ga. 741, 11 S. E. 833, 9 L. R. A. 373, such reduction was effectuated by a verdict, but also true that this was done on an express statute allowing so molding the verdict, on the law side. But all this cannot avail here. We have no such statute, and this suit is on the law side. There, and especially on demurrer, the court may not add to the petition a tender to do equity. See Wheelan v. Couch, 25 Grant, Ch. (Ont.) 74.

[5] There is no force in the claim that this demurrer should have been overruled, because the defendant had the power to meet the petition with a counterclaim or set-off asserting damages from use and depreciation. The demurrer being overruled, the overruling would settle as the law of the case that plaintiff could have judgment for the full amount claimed, without reduction for use and depreciation. Suppose the company had made default by failing to answer over after its demurrer had been overruled; on the ruling made, the court was bound to give judgment for the plaintiff for the total of the payments she had made upon proof of nothing save how much she had paid and that the vendor had repossessed himself of the instrument. In the eyes of the law the petition declared that a stated sum had been paid, that a reduction in an undisclosed amount was due for use and depreciation, and that the vendor had retaken the property. On overruling the demurrer and entering default by the seller, the court was bound to give judgment for more than was due and owing.

Again, the petition was a declaration that repayment was due upon implied contract, and that some of the contract obligation had been paid by use and depreciation; and as it was not stated how much had been paid, there was consequently no allegation that the contract obligation was unpaid. For all that appeared, had the amount of use and depreciation been alleged, it might have been an amount sufficient to equal the payments that had been made. Now, therefore, it was not the duty of the company to plead use and depreciation by way of set-off or counterclaim, because it was the duty of the plaintiff to plead that its demand was unpaid. We defeated the plaintiff in Baldwin v. Moser, 155 Iowa, 414, 136 N. W. 196, because he adduced no evidence that his claim was unpaid, or, if anything was shown to be due and unpaid, because he had no proof “of the amount or balance for which...