Kohler v. Hayes

41 Cal. 455 | Cal. | 1871

By the Court, Rhodes, C. J.:

It appears, from the agreed statement of facts, that the plaintiff delivered to Dowling a piano under the following agreement:

“ Received from Andrew Kohler, on rent, a certain pianoforte, which I agree to return in good order, and to be responsible for the value thereof, the same being of the value of five hundred dollars; and for the use of which I agree to pay said Andrew Kohler, or to his order, the monthly rent of thirty-five dollars or forty dollars, strictly in advance. * * * This piano and stool to be sold for four hundred and eighty-five dollars, on the following terms: Forty dollars to be paid each month till the above sum is paid, when a bill of sale will be given; interest at one per cent per month, to be paid on the amount unpaid after ninety days.

“Richard Dowling.”

It also appears that “ Dowling never paid the plaintiff’ upon or under said agreement, or in any way, any money, except the sum of one hundred dollars, which sum of one hundred dollars said plaintiff received thereon.” But it does not appear whether that sum was paid as rent, or as a part of the purchase money. The question for solution is whether that instrument is evidence of an absolute sale of the piano. If the agreement fell short of an absolute sale, Dowling had not the capacity to transfer the title to the piano. The first portion of the written instrument, if it amounts to anything, shows that the parties intended to make a lease. The term is not stated, nor is the rent specified with certainty. It is unnecessary, however, to determine whether, for those reasons, it is void as a lease; for, whether void or valid, it does not constitute a sale, nor does it contribute to that purpose. The remaining portion of the instrument specifies the price and terms of sale; but it recites neither that the plaintiff had sold, nor that Dowling had purchased, the piano. It is either a specification of the terms of the sale, should Dowling elect to purchase, or, at most, a conditional sale. The provision for the giving of a bill of sale, upon the payment of the price of the piano, indicated that it was not the intention of the parties that the title should pass upon the making of the "agreement.

Judgment and order reversed, and cause remanded for a new trial.

Mr. Justice Crockett did not express an opinion.