The Star Piano Co. v. Brockmeyer.

• Decision Date: 10 October 1916
• Citation: 78 W.Va. 780
• Court: West Virginia Supreme Court
• Parties: The Star Piano Company v. Brockmeyer.

78 W.Va. 780

The Star Piano Company

v.Brockmeyer.

Supreme Court of Appeals of West Virginia.

Submitted October 3, 1916.

Decided October 10, 1916.

1. Appeal and Error Review Discretion of Trial Court Grant of New Trial.

It takes a stronger case in an appellate court to reverse a judgment awarding a new trial than one denying it and giving judgment against the party claiming to have been aggrieved. (p. 783).

2. Principal and Agent Bights and Liabilities of Third Persons Unauthorized Acts Ratification.

Where an agent authorized to sell goods for his principal on particular terms, violates those terms, and makes sale thereof on different terms, and the principal with full knowledge of the facts and circumstances of the sale, afterwards elects to accept from the agent or his representatives notes and securities for the purchase money, he will be deemed to have ratified the unauthorized act of the agent and be bound by his contract. (p. 784).

Error to Circuit Court, Cabell County.

Action by the Star Piano Company against A. Brockmeyer. Judgment for defendant and plaintiff firings error.

Affirmed.

Dauglierty & Biggs, for plaintiff in error.

Williams, Scott d; Lovett, for defendant in error.

Miller, Judge:

This action, begun before a justice, purporting to be "for the recovery of money due on contract", and tried upon an appeal by the defendant in the circuit court, resulted in a verdict for plaintiff for two hundred and forty five dollars, which the court, upon defendant's motion, set aside and awarded him a new trial. From that judgment the plaintiff obtained the present writ of error.

The cause of action was the price of one piano sold to defendant by plaintiif's agent, Wright, at Gallipolis, Ohio, in 1914, and the claim of plaintiff is that defendant failed to pay for the piano, and remains liable to it on his contract therefor. The material facts and circumstances relied on, and not controverted are, that Wright, the agent of the plaintiff, was also the agent of the Singer Sewing Machine Company, and had been the latter's agent for about twenty five years. The defendant was supervisor of agencies of the Singer Sewing Machine Company, located at Huntington, this state, with jurisdiction over the territory in Ohio occupied by Wright, At the time of his purchase of the piano from Wright, agent for plaintiff, he and his assistant Conley were at Wright's place of business in Gallipolis, for the purpose of receiving his report of sales and. collections, as agent of the Singer Sewing Machine Company, for the current settlement period. Wright's report showed an unusually good business, and his collections for which he was about to settle amounted to something over three hundred dollars. And then it was that Wright renewed his request to Brockmeyer to buy a piano. Brockmeyer then selected a piano, and Wright promptly transmitted an order to plaintiff for a piano like the one selected, to be shipped to Brockmeyer at Huntington from the plaintiff's factory in Indiana, the price agreed upon being two hundred and forty dollars. Brockmeyer then proposed to pay Wright for the piano, by his check on a Huntington bank, but instead Wright directed him to make the check payable directly to the Singer Sewing Machine Company, and turn it over to Conley on his account due the Singer Sewing Machine Company, and he would give Conley his check also for the balance due on his account, which was done and the settlement made in that way, Brockmeyer taking Wright's receipt as agent for the piano company, for the full price of the piano. Brockmeyer's check was paid in due course and the same amount passed to the credit of Wright as agent.

There was some delay in the shipment of the piano ordered to Brockmeyer; and later Wright, assisted by Purnell, general agent, for the piano company, shipped the piano in stock at Wright's place of business to Brockmeyer, and it was received by him at Huntington. Presumably Purnell and his company were fully advised at the time of the character of the transaction between Wright and Brockmeyer; at least no denial of this fact is made by them.

Some time after the transaction, Wright unexpectedly died, and upon his death settlement was made by his widow, later appointed administratrix, with the piano company for the balance found due, including the price of the piano sold...