Wickham v. Evans
| Decision Date | 09 March 1907 |
| Citation | 110 N.W. 1046,133 Iowa 552 |
| Parties | J. H. WICKHAM, Appellee, v. F. O. EVANS and THE STORY & CLARK PIANO COMPANY, Appellants |
| Court | Iowa Supreme Court |
Appeal from Polk District Court.-- HON. W. H. MCHENRY, Judge.
SUIT in equity to cancel certain notes held by defendants, and for the value of a piano, which it is alleged defendants have converted to their own use. Defendants filed a general denial and a counterclaim. The case was tried to the court resulting in a judgment for plaintiff in the sum of $ 342.06 and a decree canceling the notes. Defendants appeal.-- Affirmed.
Affirmed.
Hager & Powell and Williamson S. Summers, for appellants.
E. A Johnson and George E. Hise, for appellee.
The Story & Clark Piano Company is a corporation engaged in the manufacture and sale of pianos and other musical instruments in the city of Chicago. Defendant Evans was and is its general manager, denominated "General Western Agent," with an office in the city of Des Moines. One Diltz was engaged in the business of selling pianos at the town of Tipton in this State, doing business under the name of the "Diltz Music House."
On or about May 15, 1901, Evans, on behalf of his company, entered into a contract of agency with Diltz, the material facts of which read as follows:
I hereby certify that all pianos which are now or shall hereafter be furnished me by you are to be held upon consignment and for sale for your benefit, and all money, notes, or other property received from the sale of any piano shall belong to you until settlement is made therefor. (2) I will endeavor to sell promptly all instruments you consign to me, and will, as soon as sold, remit to you in cash or approved customers' contracts, which shall always be subject to your approval, with security on the instrument sold. Said contracts to be made on blanks furnished by you, to draw interest at the rate stated thereon, and payment of the same is hereby guarantied by me at maturity, waiving notice or protest. (3) In case of contracts for the payment of the purchase prices of instruments falling due and remaining unpaid, you are hereby authorized at your option to charge the same to my account, principal and interest, together with the same cash premium that you allow me on cash remittances. (4) All instruments taken back from customers, in default of payments on contracts or for other causes, and all new or second-hand instruments taken in exchange for, or in part payment for, instruments consigned to me by you, are to be regarded as goods consigned to me, and to be accounted for in the same manner. (6) The right of instructing as to terms upon which sales are to be made, and the manner of securing deferred payments is reserved to you. . . . (7) Upon your demand, or that of your agent, I will deliver as you may direct, free of charge or expense of any kind, to you, including return freights, any and all of said goods remaining unsold at the time of said demands, including the original packing cases of the same. (8) All goods I return whether from stock in my hands or from customers for default in payment on contracts sent in by me, are to be passed to my credit at 90 per cent. of invoice to me as agent less return freight, the balance, 10 per cent., being deducted for depreciation and shop wear of goods, and if they are instruments which have been taken in exchange or trade, they are to be credited at their fair cash value [less return freight]. (9) For the purpose of forming a basis upon which my compensation is to be fixed for the sale of said instruments they are to be invoiced to me as agent at prices and terms given me by you, and with prices, terms and values I will account to you for; and I agree that my compensation and commission hereunder shall be such sum or sums as I may sell said instruments for in excess of such invoice as to the instruments, respectively. My commission, as above, will not be available to me in any form until you have received in cash the invoice price, with interest. (10) I will send you statement the 1st day of each month of all instruments remaining on hand unsold, and will give you the names, post office addresses, and exact locations of parties who have instruments in their hands unsettled for on that date, and will account to you immediately upon any sale being made. (11) I will make no charge of any kind for services in repairing pianos, making collections, or similar acts, which are for our mutual benefit, unless such charge is agreed upon and authorized by you previous to the rendering of such service. (12) This agency may be terminated at any time by either party, and any stock which I may have on hand will be subject to your order.
C. A. Diltz.
Witness: F. O. Evans.
We hereby accept the above contract of proposal this 15th day of May, 1901.
F. O. Evans,
Mgr. Story & Clark Piano Co.
Various pianos were shipped by the defendant company to Diltz under this contract, one of which he sold to plaintiff herein at the agreed price of $ 350, $ 100 of which was represented by an organ which plaintiff delivered to Diltz, and the remainder by three notes -- one for $ 50 due January 1, 1902, another for $ 100 due January 1, 1903, and a third for $ 100 due January 1, 1904. The first note was to be treated as a cash payment. After the three notes had been executed and delivered, Diltz insisted upon having security for the two $ 100 notes, and to this plaintiff at first objected; but, finally, upon Diltz's representation that the paper was nothing but a mortgage upon the piano to secure the $ 200, the same as he had many times taken, plaintiff consented, and signed the instrument, relying upon Diltz's statement regarding the nature of the instrument. This instrument turned out to be a mortgage note for $ 300, with an indorsement of the payment of $ 100 upon the back thereof. This mortgage note Diltz turned over to Evans, the general agent at Des Moines, on or about November 18, 1901. By the terms of this instrument, $ 100 was paid in cash, and $ 100 was to be paid on or before October 7, 1903, and the other $ 100 on or before January 1, 1904. Shortly after Diltz had sent this instrument in to his company he sold or put up as collateral the $ 100 note, maturing January 1, 1903, to the Cedar County State Bank, at Tipton, Iowa and indorsed the same in blank. About this same time Diltz transferred the other $ 100 note to some one; but this upon the trial in the court below was produced by Diltz.
Plaintiff received notice from the bank that it held his note, and that it matured January 1, 1903, and, meeting Diltz at Cedar Rapids, which is not far from Tipton, and at which place Diltz was also engaged in the piano business, he, on or about January 10, 1903, gave him (Diltz) the money wherewith to pay or take up this $ 100 note. Diltz gave him a receipt for the money, and in due time plaintiff received his note from the Cedar County Bank marked "Paid Febry 10th, 1903, Cedar County State Bank." On or about August 16, 1902, Evans wrote a letter to plaintiff upon paper, bearing this printed matter on one corner: the following:
It is well in this connection to note the statement as to the time of the maturity of the notes. The piano was sold under a warranty, and, during the fall of the year 1903, plaintiff notified Evans that the instrument was defective; and in response received a written promise from the agent to make it satisfactory. On January 13, 1904, Evans again wrote plaintiff, saying that they had not sold his note, that they would make the piano satisfactory, and that a representative of the company would call upon him in short time, when he could make a payment of $ 75 on the note; that the agent would ship the instrument to the factory, and that when returned he, plaintiff, could pay the balance. Wickham paid $ 75 to the agent, who took the instrument and returned it to the factory. Thereafter plaintiff received the following letter written on the usual...
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