Schroeder v. Hotel Commercial Co.

• Decision Date: 06 April 1915
• Docket Number: 12198.
• Citation: 84 Wash. 685,147 P. 417
• Parties: SCHROEDER et al. v. HOTEL COMMERCIAL CO.
• Court: Washington Supreme Court

147 P. 417

84 Wash. 685

SCHROEDER et al. v. HOTEL COMMERCIAL CO.

No. 12198.

Supreme Court of Washington

April 6, 1915

Department 2.Appeal from Superior Court, Yakima County; Thos. E. Grady Judge.

Action by H. B. Schroeder against the Hotel Commercial Company.From a judgment for defendant, plaintiff and the Eilers Music House, made a partyplaintiff to participate in the appeal appeal.Affirmed.

Marx &amp Conger, of Tacoma, for appellants.

Wende & Taylor, of North Yakima, for respondent.

ELLIS J.

The plaintiff, Schroeder, as assignee for collection, brought this action to recover from the defendant unpaid installments on the purchase price of an electric piano known as a 'Welte Mignon,' sold on conditional sale by Eilers Music House to the defendant.

The facts are these: In August, 1911, Schroeder was the manager of the North Yakima branch of the Eilers Music House, a corporation.About that time Hitchings and Harrah, officers and chief owners of the defendant company, desiring to purchase some kind of automatic music instrument for use in their hotel, opened negotiations therefor with Schroeder.He had nothing in stock meeting their desire, and it was agreed that the three would look through the stock of Eilers Music House in Seattle, which they accordingly did on August 28, 1911.One Hopper, manager of the Seattle house, showed them, among other automatic instruments, the one here in question.He represented that the Welte Mignon was an automatic piano the mechanism of which was made in Freiburg, Germany; that it differed from others in that it reproduced not only the notes but the expression, style, and mannerism of the artist who played the selection to produce the record; that it reproduced the playing of a given selection on the same principle that a phonograph reproduces the singer's voice.Neither Hitchings nor Harrah had any knowledge of musical instruments and, as the evidence shows, both were especially ignorant of instruments of this character.The operation of the instrument was demonstrated to them for something over an hour, during which time two or three selections were played.The mechanism was exposed and to some extent explained, but it is clear that none of the defects from wear, which afterwards developed, were pointed out to Hitchings or Harrah.Hitchings remarked that the case looked cloudy as if it had been used.Harrah remarked that the silk lining in the front of the case had rotted away.Hopper then informed them that the piano had been used for demonstration purposes at the Alaska-Yukon-Pacific Exposition and since in the storeroom of the music house, but that it would be cleaned and polished and put in perfect order before being shipped.Hopper himself further testified:

'And I also assured them that the condition of the instrument was absolutely first class so far as the interior mechanism was concerned.It was not worn, it was not in bad condition, the keyboard was not yellow, and the instrument itself was in good condition, and for all intents and purposes to the purchaser should play just as well as new.'

Hitchings and Harrah remarked that the instrument played too loudly and irregularly, but were informed that this was caused by an improper adjustment of the electric current by which the piano was operated.Finally, it was agreed that the defendant hotel company would purchase the piano, receiving a small reduction on the regular price.Four hundred dollars was paid down upon the purchase price, and it was agreed that the balance, amounting to $1,450, should be paid in installments.A conditional sale contract was drawn up and signed by the defendant company by Hitchings, its manager.This contract described the instrument as a 'Welte Mignon,' made no reference to it as an old used or secondhand instrument, and provided that 'any agreement other than expressed on the face of this note will not be recognized.'It was admitted, however, that it was agreed, at the time and as a part of the same transaction, that the instrument would be put in first-class condition and all of the apparent defects remedied.

Early in September, 1911, the instrument was installed in the dining room of defendant's hotel at North Yakima, but the evidence shows that it failed to operate satisfactorily; that it produced loud and discordant notes; that it was used less than three months, being operated almost wholly by electrical current and seldom by hand; that the Eilers Music House sent an expert to remedy the defects, who remained in North Yakima for several days, but failed to materially or permanently remedy the defects; that the defendant company finally abandoned its use altogether.It also appears that the defendant's officers entered into negotiations with Schroeder for an exchange of the instrument for another, and that Schroeder, claiming that the matter would have to be referred to the head officers of the company, told them to pay no attention to the requests for payment of the installments falling due on the purchase price pending such negotiations.Finally, about the 1st of March, 1913, the defendant absolutely refused to make further payments, and the plaintiff brought this action to recover the balance of the purchase price.The defendant filed a cross-complaint seeking rescission of the contract on the ground that it was procured through false and fraudulent representations.

The cause was tried to the court and jury.A verdict was returned in favor of the defendant, but the court after some days' consideration concluded to treat the verdict of the jury as merely advisory, made complete findings of fact and conclusions of law, and entered a decree in favor of the defendant.Upon its own motion the Eilers Music House was made a partyplaintiff for the purpose of participating in this appeal.

1.The appellants claim that the court erred in permitting the presence of the piano in the courtroom during the trial and its use in illustrating the testimony of witnesses, on the ground that there was no evidence that its condition was at the time of the trial, November, 1913, the same as at the time of purchase.There was, however, evidence of the character and extent of the use of the instrument in the meantime.Hitchings testified that it was used for an hour each day at lunch and dinner for two or three weeks, that it was used very little after that, and within a month or two its use was discontinued altogether; that this was its only use, except a few times it was played by hand as an accompaniment to a violin.Expert evidence as to its condition, showing wear to pedals, keys, hammers, and internal mechanism, which could not have resulted from such limited intermediate use, was also introduced.We are satisfied that both the court and the jury were better able to understand this testimony and to determine the probable condition of the instrument at the time of the sale with the machine itself before them than they would have been by the unillustrated testimony.Courts are permitted a wide discretion in the use of illustrative aids, such as pictures, models, and machines.Harris v. Seattle, Renton & Southern Ry. Co.,65 Wash. 27, 117 P. 601.This is a common practice, especially where questions of mechanism are involved.We find no error in the use of this machine or in permitting its presence in the courtroom.

A kindred objection is advanced touching the use of a new piano action as illustrative of the testimony of an expert witness as to the difference between an old and a new action.What we have said of the use of the piano in issue sufficiently disposes of this objection.

2.It is contended that the court erred in admitting evidence of representations in the nature of warranties not contained in the written contract and in instructing the jury thereon though it is asserted that the case was tried throughout upon the theory of fraud.We pass the manifest paradox in the claim that evidence and instructions were admitted and given on the theory of warranty while the case was tried throughout on the theory of fraud.Both claims, of course, could not be true.The ground of appellant's contention seems to be that the evidence of verbal representations in the nature of warranties made prior to the execution of the contract was inadmissible as tending to vary the terms of the writing itself.The case of Eilers Music House v. Oriental Co.,69 Wash. 618, 125 P. 1023, is cited as a parallel case sustaining this contention.That case, however, presented wholly different...