Rubin v. Gallagher, 33.

• Decision Date: 05 June 1940
• Docket Number: No. 33.,33.
• Citation: 292 N.W. 584,294 Mich. 124
• Parties: RUBIN v. GALLAGHER.
• Court: Michigan Supreme Court

294 Mich. 124

292 N.W. 584

RUBIN

v.GALLAGHER.

No. 33.

Supreme Court of Michigan.

June 5, 1940.

Action by Melba Rubin, trustee for Selma Ames, against John J. Gallagher for 50 per cent. of amount which had been paid on a title-retaining contract, after the repossession of pianos sold under the contract. From an adverse judgment the defendant appeals.

Affirmed.Appeal from Circuit Court, Wayne County; Vincent M. Brennan, judge.

Argued before the Entire Bench.

Dennis Boyle, of Detroit, for appellant.

Samuel H. Rubin and Alan J. Stone, both of Detroit (Melba Rubin, in pro. per., of counsel), for appellee.

Grosner & Burak, of Detroit, amicus curiae for Baldwin Piano Co.

McALLISTER, Justice.

The Baldwin Piano Company of Ohio sold a number of pianos to a music school in Detroit in title-retaining contract in which it was expressly provided that ‘this contract shall be construed in accordance with the laws of the State of Ohio.’ Defendant is assignee of the vendor, and plaintiff succeeded to the rights of vendee. On default of payment, defendant brought replevin in Detroit and secured possession of the pianos.

Under the laws of the State of Ohio, it is provided by the General Code, § 8570, as follows: ‘When such property [personal property] except machinery equipment and supplies for railroads and contractors, for manufacturing brick, cement and tiling, and for quarrying and mining purposes, is so sold or leased, rented, hired or delivered, the person who sold, leased, rented, hired, delivered or his assigns or the agent or servant of either or their agent or servant shall not take possession of such property, without tendering or refunding to the purchaser, lessee, renter, or hirer thereof or any party receiving it from the vendor, the money so paid after deducting therefrom a reasonable compensation for the use of such property, which in no case shall exceed fifty per cent of the amount so paid, anything in the contract to the contrary notwithstanding, and whether such condition be expressed in the contract or not, unless such property has been broken, or actually damaged, when a reasonable compensation for such breakage or damage shall be allowed. But the vendor shall not be required to tender or refund any part of the amount so paid unless it exceeds twenty-five per cent of the contract price of the property.’

After repossession under replevin by defendant, plaintiff brought suit to recover 50 per cent. of the amount which had been paid upon contract. In circuit court she received a judgment for the amount claimed; and defendant appeals.

It is contended appellant that principles governing the conflict of laws between different jurisdictions are herein applicable, for the reason that plaintiff's rights under the Ohio statute are only remedial; and that the contract providing that such rights be construed according to the laws of Ohio, precludes this court from affording remedies under the laws of this State. In regard to this contention, we agree with the trial court that the stipulation in the contract providing that it was to be construed according to the Ohio statutes created a substantive right in favor of the vendee. According to such statutes, plaintiff had a valuable property right to a sum of money in case of repossession of the pianos by defendant. How she would assert such right in Ohio would depend upon Ohio law. But the procedure and remedy for the enforcement of such substantive rights in Michigan are governed by the laws of this State.

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