Pemberton v. Price & Teeple Piano Co.

• Decision Date: 22 September 1911
• Citation: 144 Ky. 518,139 S.W. 742
• Parties: PEMBERTON v. PRICE & TEEPLE PIANO CO.
• Court: Kentucky Court of Appeals

139 S.W. 742

144 Ky. 518

PEMBERTON v. PRICE & TEEPLE PIANO CO.

Court of Appeals of Kentucky.

September 22, 1911

Appeal from Circuit Court, Hopkins County.

Action by the Price & Teeple Piano Company against Kate Pemberton. From a judgment for plaintiff, defendant appeals. Affirmed.

C. J Waddill, for appellant.

Gordon & Hopewell, for appellee.

MILLER J.

Appellee Price & Teeple Piano Company, of Chicago, instituted this claim and delivery suit against Kate Pemberton on January 26 1910, for the recovery of a piano valued at $250. It succeeded, and from a judgment awarding it possession of the piano the defendant prosecutes this appeal.

W. F Hopkins and W. E. Lafoon, doing business as partners under the name of the "Madisonville Music Company" (hereinafter called the Music Company for brevity), had been for several years before the filing of the petition in the business of selling pianos and musical instruments of the Price & Teeple Piano Company under a written contract which retained the ownership of the goods in the piano company, and gave the music company a selling agent's commission only. All pianos, organs, and other property furnished to the music company were held on consignment until sold and such sale was approved and accepted by the piano company. All notes, contracts, and leases taken in the sale of goods were to be a lien upon the instruments sold, and made payable to the piano company, and subject to its approval and acceptance. The music company handled and sold other pianos and musical instruments, and had similar contracts with other piano companies. It became the tenant of appellant, Kate Pemberton, and as such tenant took possession of and moved the piano, which is the subject of this action, into her storehouse. It became indebted to her in the sum of $160 for the rent of said storehouse, which was evidence by the music company's note, wherein a lien was retained on said piano to secure the payment of the note. The music company turned over said piano to the appellant in satisfaction of said rent note within three months after said rent had become due. The piano company did not expressly know of, or consent to, the delivery of the piano to the defendant, except in so far as the music company had the right to act for it under the written contract. The music company, for months prior to the time it became the tenant of appellant, had been selling pianos and instruments of the piano company; and said piano company had no other agent in Madisonville, if, indeed, the music company is to be considered the agent of the piano company. The appellant did not know of the written contract between the piano company and the music company, and took the piano in good faith.

The case having been tried by the judge without the intervention of a jury, a judgment was entered granting the piano company the possession of the piano upon the ground that the music company could not use its principal's property to pay its own debt, and that the appellant in accepting the property in payment of such debt acquired no title thereto.

The circuit judge rested his decision upon the authority of Baldwin v. Tucker, 112 Ky. 282, 286, 65 S.W. 841, 842, 23 Ky. Law Rep. 1538, 57 L.R.A. 451), and in doing so we think he ruled correctly. In that case this court enforced a contract substantially like the one at bar, after a full consideration of the questions involved. The opinion thoroughly discusses the question, and it is not necessary to repeat the discussion here. The gist of it is contained in the following language: "Sparks seems to have been made the agent, with limited powers, to transact all the business in the matter of selling musical instruments in the city of Harrodsburg and such other territory as might be agreed upon between the parties. Without deciding, we will assume that he was the general agent for appellants to sell pianos in Harrodsburg. According to the terms of the contract, he had no authority except to solicit orders for pianos. Where an agent is intrusted with goods to sell for his principal, he has no right to sell or deliver them in payment of his own debt. The creditor who receives goods under such an arrangement, notwithstanding he may be acting in good faith and in ignorance that the goods did not belong to the agent, acquires no title thereto against the principal." And on the same page the opinion quotes the following from section 354 of Mechem on Agency in support of its conclusion: "An agent intrusted with goods to sell for his principal has no right to sell or deliver them in payment of his own debt, or to pledge them as security for his own debt, and persons dealing with such an agent are bound to take notice of this limitation of his authority. A creditor, therefore, who receives the goods under such an agreement, as well as his vendee, though acting in good faith, and in ignorance that the goods did not belong to the agent, acquires no title thereto against the principal." In the case at bar the agent, the Madisonville Music Company, undertook to pay its own debt of $160 by delivering to appellant a piano belonging to the appellee, the list or wholesale price of which was $250. Appellant stoutly contends that, because this rental was owing by the agent for a house in which the pianos of appellee were stored, the debt became the debt of the principal as one necessarily incurred in order to carry out the agency. This is the familiar contention usually made in all cases of this character; and not only substantially assumes the question in issue, but was disposed of adversely to appellant's contention in Baldwin v. Tucker, supra.

2. It is insisted, however, that appellee ratified the transaction between the music company and the appellant. The facts of ratification relied upon appear in the evidence only, and are as follows: Appellee resided in Chicago; and prior to September 10, 1909, its attorneys had prepared a suit against the music company and its sureties upon a balance owing by it, which included the price of the piano recovered in this case. Appellee did not know at that time what had become of this particular piano. On September 10th its attorneys learned that this piano was in the possession of appellant but they did not know the character of appellant's possession; and on that date they wrote appellee, inquiring as to the facts of the transaction. Appellee knew nothing of the facts or character of appellant's possession of the piano. Appellee's attorneys did not learn until September 24th the true state of facts as to appellant's possession of the piano, and on that date they notified appellant that appellee claimed the piano as its property, and would sue for it unless possession was surrendered immediately. In the meantime the suit to recover the balance due had been held up for several days, pending a proposed settlement by the sureties, but was finally filed on September 15, 1909. Subsequently...