Weaver Piano Co., Inc. v. Curtis

• Citation: 155 S.E. 291,158 S.C. 117
• Decision Date: 08 October 1930
• Docket Number: 12993.
• Parties: WEAVER PIANO CO., Inc., v. CURTIS.
• Court: United States State Supreme Court of South Carolina

155 S.E. 291

158 S.C. 117

WEAVER PIANO CO., Inc., v. CURTIS.

No. 12993.

Supreme Court of South Carolina

October 8, 1930

Appeal from Common Pleas Circuit Court of Sumter County; Wm. H Grimball, Judge.

Action by the Weaver Piano Company, Incorporated, against C. H Curtis, with counterclaims by defendant. A demurrer to the various defenses and counterclaims was sustained, and defendant appeals.

Affirmed.

The complaint, answer, and order of Judge Grimball were as follows:

Complaint.

The plaintiff above named, complaining of the defendant herein alleges:

I. That the plaintiff is a corporation duly incorporated under the laws of the State of Pennsylvania, with the right to sue and be sued, etc.; and the defendant is a resident of the City of Sumter, State of South Carolina.

II. That on or about February 14th, 1925, the plaintiff and the defendant entered into a written agreement, a copy of which is hereto attached and made a part hereof whereby it was agreed that the Company appointed the defendant as its selling and leasing agent and collector at Sumter, South Carolina, on the sales of pianos and phonographs, upon certain terms and conditions set forth in said contract, those most pertinent to this action being to the following effect:

(a) All pianos and phonographs that should be sent to the defendant by the plaintiff should be furnished to the defendant as selling and leasing agent for the plaintiff and that title to the same and to the contracts, leases, agreements and moneys taken and collected upon the sale or lease of the same should be and remain vested in the company.

(b) The defendant agreed to take all leases, notes and agreements in the name of the company or, if taken in the name of the defendant, the same should be assigned over to plaintiff.

(c) That at the termination of said agreement, the defendant agreed to return, free of expense to the plaintiff, or deliver to its order, all goods or property of any description belonging to the company not then sold or leased, including re-possessed instruments, etc.

(d) That all accounts in the hands of the defendant for collection might be withdrawn at any time by the company, and in such cases, the company would be entitled to a collection fee of ten per cent on all moneys collected by it, except on notes paid at bank at or before maturity.

(e) The company, at its option, could assume any other duties belonging to the defendant under the terms of said agreement or any fulfillment of any of the conditions with any of the customers to whom instruments furnished by the company may have been leased or sold, in each case the plaintiff should be allowed a reasonable compensation for such services.

(f) At the termination of said agreement, or sooner termination if demanded by the company, the plaintiff should receive the entire amounts collected each month on all time sales and leases and other accounts shall become the property of the defendant, if the plaintiff had been paid all of the money coming to it.

(g) It is further provided that said agreement could be terminated by either party, so far as the selling or leasing of instruments was concerned, the remaining conditions and options to remain in force until the accounts were fully settled according to the conditions of the agreement.

III. The said agreement was to continue for no definite period of time, but could be terminated at any time by either party.

IV. For a fuller detail of said agreement, a copy of the same is hereto attached and made a part of this complaint, and reference thereto is craved as often as may be necessary.

V. That on or about October 8th, 1929, the plaintiff notified the defendant that the plaintiff exercised its right under the contract to terminate the agreement as to the selling and leasing of instruments and exercised its option to assume the duties at that time belonging to the defendant of making further collections and demanded of the defendant that it turn over to the agent of the plaintiff all of the property of every description in the possession of the defendant belonging to the company; and at said time notified the defendant that the plaintiff would take the same over under the terms of its contract and would scrupulously follow the terms of said contract for the mutual protection of both parties.

VI. That the defendant refused to turn over to the plaintiff seven pianos, the property of the plaintiff, and of the value of twelve hundred dollars; all of which were in the possession of or under the control of the defendant and all of which belonged to and were the property of the plaintiff.

VII. The plaintiff is informed and believes that the defendant refused to deliver the said property on claim that under the terms of said contract he had a right to hold the same.

VIII. The plaintiff has at this time possession of the notes and securities taken for the goods actually sold and delivered, in so far as the plaintiff is informed and believes, and the plaintiff will, under the terms of the contract, endeavor to liquidate the same and make an accounting with the defendant in accordance with the terms of said contract.

Wherefore, the plaintiff demands judgment against the defendant for the recovery of the possession of said property, or for the sum of twelve hundred dollars, the value thereof, in case a delivery cannot be had.

Copy.

Filed in Book 89 of Chat. Mtgs. Page 727.

"This Agreement made at York, Pa., (and to be construed according to the laws of Pennsylvania) this 14th day of February, 1925 between the Weaver Piano Company, Inc., a corporation duly incorporated under the laws of Pennsylvania, and located at York, Pennsylvania, hereinafter called the Company, whose corporate existence for all purposes is hereby admitted, and C. H. Curtis hereinafter called the Employed.

"Witnesseth: That the Company hereby appoints the Employed as its selling and leasing agent and collector (but without authority to bind the Company for any obligations whatsoever with others) at Sumter, South Carolina, upon the following terms and conditions, namely:

"All pianos and phonographs that shall be sent to the Employed by the Company, shall be furnished to the Employed as selling and leasing agent for the Company and the title to the same and to the contracts, leases, agreements and monies taken and collected upon the sale or lease of the same shall be and remain vested in the Company and shall not in any manner become the property of the Employed, except as hereinafter provided.

" The Employed agrees to take all leases, notes and agreements in the name of the Company, or if taken in the name of the Employed immediately to assign the same over to the Company and forward the same to the Company as soon as the Employed shall take them from the parties buying the instrument or instruments or leasing the same. The Employed agrees to give due diligence to the collections of the accounts on instruments furnished by the Company and to make a written report to the Company on the first day of each month showing the amount of monies received by the Employed on account of sales or lease of instruments and to pay the Company the amount appearing to be due according to the conditions herein mentioned.

"The Employed agrees to pay all expenses incident to the business conducted by this agency, including all taxes levied on instruments while in charge of the Employed and including the rent of such premises as the Employed may deem necessary for the business, and said Company is to be under no expense whatever in connection with the business at this agency. The instruments furnished to the Employed shall be kept insured in the name of the company, by the Employed and at the expense of the Employed.

"At the termination of this agreement the Employed agrees to return, free of expense, to said Company or deliver to its order, as it may require, all goods or property of any description, belonging to the Company, not then sold or leased, including repossessed instruments, and if any instruments are in any way damaged to pay a reasonable amount for repairs of same to make them as good as new; or if lost to pay for them in full.

"The Company shall have the right, whenever it shall think proper, to take back any instrument sold or leased by the Employed, and at its option to surrender the notes or leases given therefor, and the Employed agrees to waive all claim for commissions which the Employed had or might have had in such note or lease, but for such retaking and surrendering, and to pay the expenses of such retaking.

"Should the Company at any time desire to know the location of any instruments furnished under this agreement, the Employed shall locate the same to the satisfaction of the Company, or its agent, and without expense to the Company, and the Employed agrees to repossess and deliver to the Company any instruments they may direct without cost to the Company.

"Accounts in the hands of the Employed for collection may be withdrawn at any time by the Company and the Company will be entitled to a collection fee of ten per cent on all monies collected by it, except on notes paid at Bank at or before maturity.

"The Company may at its option assume any other duties belonging to the Employed, under the conditions of this agreement, or in fulfillment of any of the conditions agreed by the Employed with any of the customers to whom instruments furnished by the Company may have been leased or sold and for such services a reasonable compensation shall be allowed the Company by the Employed.

"The instruments taken in trade shall be retained by the Employed as part payment for commission. The Employed shall in no case allow more for an instrument in exchange

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