McKinney v. Grant, No. 15,210

No. 15,210 | Kan. | Dec 7, 1907

The opinion of the court was delivered by

Smith, J.:

We are unable to agree with the construction of the written contract under which the pianos appear to have been consigned to Shillito in the written opinion filed in connection with the court’s instruction to the jury to return a verdict for the defendants. On the other hand we see nothing therein, unless it be the agreement in the fourth and fifth paragraphs to pay interest on the value of the pianos upon certain contingencies, to indicate that the contract is. other than the plaintiff claims for it — an arrangement under which the plaintiff could consign musical instruments to Shillito to be sold by him as the agent of the plaintiff. The provision requiring Shillito' to pay interest on the value of the instruments,, in certain contingencies, while perhaps unusual, is not sufficient to characterize the transaction as. a sale in opposition to the expressed intention to the contrary and to several other provisions, strongly indicating a contrary intention. The most, that could be claimed for this provision for interest is. that it rendered the contract ambiguous. It is evident, from the whole contract, and especially considering the fifth paragraph thereof, that the word “interest” in the fourth paragraph was not used in the sense of rent for the use of money but was used to designate a compensation for the deterioration in the value of the instruments incident to being kept in stock and exposed to sale.

Viewed in this light, the contract is not ambiguous. It did not create the relation of creditor and debtor ber tween the plaintiff and Shillito when the instruments were consigned and received under the contract, and no money indebtedness then existed as a principal upon which interest, in the ordinary meaning of the word, could be computed. Shillito, by the terms of the contract, was to send the cash (the cash received) for each instrument separately as soon as sold. This fairly implies that the instruments were to be sold only in the usual course of trade, and for cash. That the contract does not prescribe the price at which the consigned instruments were to be sold is not unusual in a contract, of this character, which contemplates the consignment of numerous articles of different values. In short, we interpret the contract to be an unambiguous agreement, and to be for the consignment of musical instruments by the presumptive owner thereof to an agent to sell for cash only, at prices to be agreed upon.

Shillito then had no title under the contract in the pianos in question, and no right of possession thereto which was not terminable by the demand of the plaintiff therefor. The defendants derived all their claims of right thereto from Shillito, and the stream cannot rise higher than its source.

The judgment of the district court is therefore reversed, and the case is remanded for further proceedings in accordance with the views herein expressed.