| Mo. Ct. App. | Nov 5, 1900
— Sections 3412 and 3413, Revised Statutes 1899 provide, that where personal property is sold on the installment plan, and the title is to remain in the vendor until the purchase money is fully paid, it will be unlawful for the vendor, as against the vendee, to resume possession of the property without tendering to the vendee the installments theretofore paid, less a reasonable sum for the use of the-property not exceeding twenty-five per cent of the amounts so paid, and also deducting reasonable compensation for any actual breakage or damage to the property. The pivotal question in the case at bar is, whether the vendee in such a case can maintain an independent action for the amount so required to be refunded to him where the vendor has acquired the possession of the property without complying with the requirements of'the statute. The affirmative of this proposition was presented by plaintiff’s instructions, while those asked by the defendant (which were refused) presented the contrary view.
The evidence for plaintiff tended to prove that she purchased a piano from the defendant, to be paid for in monthly installments, the title to remain in defendant until the entire purchase money was paid; that she promptly paid several installments, when she defaulted on account of sickness; that during the time she had the piano at her boarding house in the city of St. Louis, and that during her absence the defendant replevied it in an action against her boarding house keeper; that prior to the institution of the action the de
The evidence for the defendant tended to prove that the piano in question had beén sold by defendant to Mrs. D. McArthur, the mother of plaintiff; that several years prior to the sale in question the same instrument had been sold to her by defendant, and that she having made default in the monthly payments surrendered it to defendant, and the sale was cancelled; that about two years thereafter the second sale was agreed to upon the same terms of the first, and that all subsequent payments were made by Mrs. McArthur, and not by plaintiff. There was a judgment in favor of plaintiff for seventy-five per cent of the installments paid, from which judgment the defendant has appealed.
The present action is to recover back seventy-five per cent of the amount of the installments which plaintiff claimed she had paid, and as before stated, the main contention of defendant is that the statute does not create an independent cause of action in favor of the vendee, and that in the circumstances of the case the plaintiff’s only remedy would be replevin, or perhaps an action of conversion. We can not agree to this. The statute provides that it shall be unlawful for the vendor in such cases to retake the property without first tendering to the vendee at least seventy-five per cent of the installments theretofore paid, less' the actual damage (if any) to the property. Plainly the statute creates in such cases a right in the vendee to demand and receive from the vendor or his assignee the amount so specified whenever the latter in any manner whatsoever regains possession of the property and refuses to redeliver it to the vendee. Possessing such a right it is elementary law that the vendee may assert
The defendant asked the following instruction, which the circuit court refused to give, to-wit: “If from the evidence the jury find that E. Gabler & Bro. Piano No. 33870 was sold by defendant to Mrs. D. McArthur then their verdict must be for defendant.” Under the evidence the instruction if it had been given would probably have misled the jury. The evidence tended to show that the piano mentioned in the instruction had been the subject of two sales. It was undisputed that the first sale was to Mrs. McArthur, while the matter of controversy concerned only the second, which the plaintiff claimed was made to her and not to her mother. The instruction should have directed the attention of the jury to the second sale. However, this phase of the evidence was fairly presented in another instruction asked by the defendant, in which the jury were told that if they found from the evidence that the defendant made no sale of any piano to Miss Irene McArthur but that any sale made by it was to Mrs. D. McArthur, then the jury will find for defendant.” This assignment of error will likewise be overruled.
After default the defendant wrote several letters to Mrs. McArthur urging her to pay the past due installments. These letters were offered in evidence as tending to show whom the defendant regarded as the contracting party. They were incompetent for that purpose, and the circuit court did right in excluding them. If the offer of proof had been supplemented by evidence tending to show that the plaintiff read the letters or was advised of their contents and remained silent, then
With the concurrence of the other judges the judgment
will be affirmed.