Reinherz v. American Piano Co.

• Decision Date: 11 January 1926
• Citation: 150 N.E. 216,254 Mass. 411
• Parties: REINHERZ v. AMERICAN PIANO CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

254 Mass. 411

150 N.E. 216

REINHERZ

v.AMERICAN PIANO CO.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 11, 1926.

Exceptions from Superior Court, Suffolk County; Stanley E. Qua, Judge.

Action of contract or tort by Etta Reinherz against the American Piano Company. On exceptions of both parties. Exceptions overruled.

James J. McCarthy, of Boston, for plaintiff.

J. B. Jacobs and J. F. Jackson, both of Boston, for defendant.

PIERCE, J.

This action, begun on January 5, 1920, in contract, was amended by leave of court on April 13, 1922, into an action of contract or tort, with a count in tort in the nature of an action of deceit. On May 1, 1922, the case was referred to an auditor, who filed the report incorporated in the bill of exceptions on July 16, 1923.

The contract in full is set out in the report. In substance, the first, second, third and fourth clauses thereof provide for the sale at named prices of ‘The Edison Talking Machine stock ‘as is”; of ‘The Cowan Machine stock ‘as is”; of ‘The Supertone and Burrows talking machines ‘as is”; and of ‘The Victor Talking Machine stock ‘as is.” The fifth, sixth and seventh clauses provide for the sale at named prices of ‘Victor Records,’ ‘Edison’ records and ‘Sundry and Accessory stock.’ ‘The total value of the above stock and records and accessories to be * * * ($19,303.44), subject only to such exceptions as mentioned herein.’ By the terms of the contract the defendant assigned to the plaintiff ‘all its rights and interests under its contract with the Edison and Victor Talking Machine Companies, inasmuch as its rights under this contract are transferable or assignable; and also, the good-will of its talking machine business, but expressly reserves to itself to the use of the name of American Piano Company or Chickering and Sons, and the said Mrs. Etta Reinherz agrees not to use in any way the name or any part of the name of the said American Piano Company, Chickering and Sons Division.’ The contract further provided that the stock, records and accessories ‘shall be already for delivery and accepted on or before the first day of September, A. D. 1919. It is hereby agreed that the delivery is to be made at 169 Tremont Street, the place of business of the said American Piano Company, Chickering and Sons Division.’

The auditor found and sets out a construction put upon the phrase ‘as is,’ found in clauses one, two, three and four of the agreement, above referred to, made by one George R. Mance, who acted for the defendant with full authority to make the sale and any part of the sale, before the signing of the agreement, at the request of the plaintiff; and further found that she relied upon the explanation and executed the agreement believing that the explanation thus given was a true explanation and that no other explanation could or would be put upon the words in the said agreement. The court, on motion of the defendant, ordered that the auditor's report, above referred to, be struck out; and recommitted the report to the auditor to restate the damages, ‘without prejudice to the rights of the plaintiff or defendant to object to the report as hereby modified or to any part thereof at the time of the trial of the action.’ At the trial to a jury the plaintiff offered the auditor's report. The defendant objected thereto, and excepted to its admission, specifically calling attention to portions of it which the defendant considered ‘prejudicial, incompetent, irrelevant and immaterial.’ The court admitted the report over the defendant's objection and exception.

[1] After the close of the evidence the plaintiff, subject to the exception of the defendant, was allowed further to amend her declaration in order to comply to the rule of Parker v. Moulton, 114 Mass. 99, 19 Am. Rep. 315. The allowance of the amendment was entirely within the discretion of the court. G. L. c. 231, § 51; Pizer v. Hunt, 250 Mass. 498, 146 N. E. 7.

The defendant moved that a verdict be directed on each count. The motion was denied and the defendant excepted. The case was submitted to the jury on issues framed by the court; and after the jury had answered the issues subject to the defendant's exception, the judge directed a verdict for the plaintiff on the first count for $987.30 and interest, a total of $1,254.91; and a verdict for the plaintiff on the second count in the sum of $7,359.16.

From the testimony of witnesses at the trial, and from the auditor's report, the jury would have been warranted in finding that the defendant, in July, 1919, conducted a branch retail piano store at 169 Tremont street, Boston, under the style of Chickering & Sons; that the business was divided into several departments, among others a phonograph department, which purchased at wholesale and sold at retail phonographs, talking machines, talking machine records and accessories; that one George R. Mance was employed as manager, and as such had full authority to make the sale in question to the plaintiff; that the plaintiff, a woman beyond middle life, was and had been for about twenty-five years a manufacturer of ladies' blouses and dresses in Boston, she was familiar with business and business dealings and methods in her own line, but was not familiar with the talking machine business, knew nothing about it and was dependent for her knowledge of this business upon information received from others; that in July, 1919, the defendant, to make room for its music roll department, decided to dispose of its talking machine department; that Mance, who had the matter of selling the talking machine department in charge ‘right on the heels of the orders which came from New York to sell out this talking machine business,’ in early July, 1919, got in touch with various talking machine dealers and inquired of them what the chances would be of disposing of it quickly; that he then went to Jordan Marsh Company to see if he couldn't get rid of it and to Filene's to see if that company wanted to take it. There was evidence that neither Filene's nor Jordan Marsh Company seemed interested or that any one came to ask about it.

At this juncture, the plaintiff learned from outside sources that the talking machine department of Chickering & Sons was for sale, and in July, 1919, went to the store of the defendant to make inquiries about the same. She there saw the manager, Mance, and had a conversation with him. He told her that the phonograph business was for sale, that the stock was worth around $20,000 and that the rights were worth more than the stock. On August 1, 1919, she again saw Mance at the store; she told him she had been in the manufacturing business, a big business, but she knew nothing about the phonograph business; she had been through sorrow and lost her only son and wanted to find an easier business. Mance ‘told her that the phonograph business would be a fine business for her and that she must not fear because she was inexperienced. He said, ‘We will give you all possible assistance in the business. The Chickering people are very responsible people and they will not take any advantage of you.’' He said there were a good many people after the business and he would not hold it unless the plaintiff gave him a binder. Mance told her in response to her request for further time that he wanted to dispose of the department immediately and wanted to get a reply right away. She said she wanted further time as she wanted her brother to look over the stock. Mance agreed to give further time if she made a deposit, and the plaintiff paid $100 and signed an agreement giving her an option to purchase the department on or before the following Wednesday, otherwise to forfeit all rights under the agreement, and the $100.

The plaintiff brought her brother and his partner, a Mr. Isaacs, who were interested in a talking machine business in Scranton, Pa., expressly to advise in relation to her purchase. The auditor found that a few days later, at the Hotel Touraine, the plaintiff and Mance had the following conversation:

‘Mrs. Reinherz: ‘I am very much worried, very nervous. I do not understand this business, and I am putting into it the savings of a lifetime.’

‘Mr. Mance: ‘You must not worry. You have a beautiful business. It is a wonderful business. Before Christmas we did not have an instrument left in the place, and every instrument has come in since.’'

Before the agreement was signed, the following conversation took place between the plaintiff and Mance:

‘Mrs. Reinherz: ‘I am very much afraid of purchasing Cowan machines because they have a very poor reputation among people who know them, and very few people know about that phonograph.’

‘Mr. Mance: ‘That phonograph is better than the Victor. The wood is real mahogany. It has a wonderful motor, and it is made for the Chickering people only.’'

The auditor finds that the plaintiff examined only the goods in the showroom of the defendant's store, a few pieces; that she was not familiar with such merchandise; that ‘on the day the ‘agreement’ was signed,' before the agreement was signed, Mance told her ‘the goods were up in crates in the warehouse, and that they would be opened for her examination as they were delivered to her, that they were in perfect condition, and that anything that was not right, Chickering & Sons would make right, that she could positively trust them.’ Respecting this the master found that ‘neither Mr. Barite, the plaintiff's brother, nor Mr. Isaacs went to the store house of the defendant.’

On August 5, 1919, immediately before the agreement was signed, Mance said to the plaintiff:

‘There is nothing the matter with the Cowans. I assure you that you will never have a bit of trouble with them. They are not...