Montenegro-Riehm Music Co. v. Beuris
| Decision Date | 28 October 1914 |
| Citation | 160 Ky. 557,169 S.W. 986 |
| Parties | MONTENEGRO-RIEHM MUSIC CO. v. BEURIS. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Breathitt County.
Action by Cora Beuris against the Montenegro-Riehm Music Company. Judgment for plaintiff, and defendant appeals. Reversed, with instructions to set aside and to enter indicated judgment for plaintiff.
O. H Pollard, of Jackson, for appellant.
W. L Kash and Kelly Kash, both of Jackson, for appellee.
On September 12, 1904, the appellant sold to the appellee, Cora Beuris, at Jackson, Ky. a piano for $325. Of the purchase price, $120 was paid by Mrs. Beuris' surrendering to appellant an organ which she had theretofore bought from the appellant; the remaining $205 was payable in monthly installments of $7 each, with interest from the date of the sale. The contract of sale was in writing, and contained the following provision:
On and between November 19, 1904, and July 5, 1907, Mrs. Beuris made eight payments, aggregating $136.50, which, when taken with the $120 paid at the time of the sale, gave her a credit of $256.50. After the last payment of July 5, 1907, Mrs. Beuris and her family moved to Hindman in Knott county, carrying the piano with them, a distance of some 40 miles overland; and after they had lived there for several years, they returned to Jackson, bringing the piano back with them. In 1911 appellant undertook to collect the remainder of its debt, and with that purpose in view it sent its salesman Mera to Jackson, to see Mrs. Beuris and her husband. He found the piano in a very bad condition. While Mrs. Beuris lived in Hindman her house had been burned; and either in the fire, or upon some other occasion, the piano evidently had been badly soaked with water. The strings were rusty, the felts unglued and part of the mahogany casing on one end had been knocked off. No agreement to pay the debt was reached, and nothing further was done upon this first trip. Some two weeks later, however, Mera made a second trip, in company with Fisher, a piano tuner in the service of appellant, who carefully examined the piano and found its condition to be as above described. Fisher explained to appellee and her husband that it would be impossible to repair the piano without taking it to the shop.
Mrs. Beuris contends that she made a contract with Mera, by which appellant agreed to take the piano to its shop in Lexington, and repair it so as to make it as good as new, and that if it was not satisfactory to Mrs. Beuris appellant would give her a new one of the same make, and she was to continue and complete her payments under the original contract of 1904. Mrs. Beuris did not testify upon the trial, but her claim as to the new contract is sustained by the evidence of her husband, T. H. Beuris; of her 13 year old son, Charles Beuris; and her sister-in-law, Mrs. Mary Beuris. The last-named witness says Mrs. Napier was present at the time the contract was made, but Mrs. Napier did not testify. Mera stoutly denies that any such contract was made, and says the contract was this: That in order to get Mrs. Beuris to pay the remainder of her purchase price which had remained unpaid since 1907--more than four years--he, acting for appellant, agreed to take the piano to Lexington and repair it as well as could be done under the circumstances, at appellant's expense, and that upon the redelivery of the repaired piano Mrs. Beuris was to then pay all she owed under the original contract. Fisher fully sustains Mera in his version of the contract. Appellee turned the piano over to appellant, who carried it to its shop at Lexington, repaired it according to the agreement, and notified appellee that it was ready for delivery. Mr. Beuris called at appellee's store and examined the piano, but did not express any satisfaction or dissatisfaction with it, merely saying that he would see to it later. Appellant refused to deliver the piano until the balance of the purchase money was paid; and, as appellee would not pay, appellant held the piano some six or eight months, and then sold it for $150, which was its fair value, as repaired, according to the uncontradicted testimony.
On January 15, 1912, Mrs. Beuris brought this action seeking to recover the nine items of purchase money, aggregating $256.50; and by an amended petition she set up the new contract above referred to, alleged that appellant had wrongfully obtained possession of the piano from her, and prayed for a return of the piano if to be had, and if not for a judgment for the sum of $266.50. The answer controverted the petitions, and by way of counterclaim, it set up the terms of the original contract; the appellee's failure to carry it out as above recited; that it had demanded of appellee a return of the piano, which was refused; that by way of settling their differences appellant agreed to repair the piano and deliver it to her in good condition upon the payment of the balance due upon the contract, with its accrued interest; that it had notified appellee on March 29 1911, of the completion of the repairs, and that it was ready to deliver the piano, but that appellee refused to pay anything thereon; and it closed with a prayer that the appellant be adjudged to be the owner of the piano, and, if that could not be done, it asked judgment against the appellee for $238.50, with interest thereon from September 24, 1904, until paid, subject to the...
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