182 Ky. 546 | Ky. Ct. App. | 1918
Affirming.
On or about March 1, 1911, the plaintiff and appellee here, Gr. H. Hackstadt, was the owner of a pin-cylinder ¡organ used in connection with a merry-go-round, or flying Dutchman, in the operation of which plaintiff was engaged at that time. He entered into a contract with the predecessors in business of the appellant and defendant below, the Symphony Player Company, to convert the organ into a player-organ to play perforated 65-note music, the work to be completed, according to plaintiff’s testimony (which is undisputed) by April 15, 1911; it was further agreed that certain work should be done to the bellows of the organ, and that it should be painted, for all of which plaintiff was to pay $135.00.
Shortly after the contract the partnership with whom it was made became incorporated in the name of the Piano Player Manufacturing Company, which assumed all the obligations of the partnership, and the name of that company was afterwards changed to that of appellant, the Symphony Player Company. The place of business of the defendant at the date of the contract was in Cincinnati, Ohio, but a short while after the execution of the contract it moved its place of business to another part of the city, from which latter place it later removed its business to the city of Covington, Kentucky. Nothing appears to have been done under the contract for almost a year, except to tear the organ to pieces and perhaps saw off some of the pipes, but in the meantime plaintiff was making frequent demands that the contract be carried out and the work completed.
Eventually plaintiff was notified that his organ had been remodeled so as to play 44-note paper music instead of that called for by the contract; but even this much was not done for more than two years after the contract was entered into. When plaintiff learned what had been done to the organ in an alleged effort to carry out the contract, he at once repudiated it and declined to accept the organ thus remodeled because it failed to produce the volume of music which he desired for his business, and further because it was an entire failure even as a player of 44-note music, in that the sound was low and there was a great discord and a lack of harmony in its notes. About that time, or shortly afterward, defendant began preparations to move its business from
On June 10,1913, another letter was written by plaintiff to defendant saying: “Replying to your letter of June 3rd will state that we have found that it is going to be utterly impossible for us to repair the organ. We wish you would kindly call upon us as early as possible without any inconvenience to yourself, and we will endeavor to get together and straighten this matter out. Regretting our inability to make the repairs as you require them, we remain,” &c. Plaintiff replied to that letter on June 13, and next day defendant wrote him, say ■ ing: “Replying to your letter of June 13th, in reference to the organ, will state that we are compelled to advise you, much to our regret, that your organ can not be finished at any time. ’ ’ The letter then continues by stating that some of the pipes were gone and that defendant did not know whether they had ever been received or whether they had been lost.
The answer was a denial, with the affirmative allegation that there was no agreement to repair the organ for the price indicated but only one to undertake such repairs, with no guarantee that the work could be done. A denial of that plea constituted the issues, and at the close of the evidence the court peremptorily instructed the jury to find for plaintiff what it might reasonably believe from the evidence was the value of the organ at the time it was delivered to defendant under the contract. This was followed by a verdict in favor of plaintiff for $700.00, upon which judgment was rendered, and to reverse it the defendant prosecutes this appeal.
The principal argument made in behalf of defendant in this court is that the evidence failed to show a conversion of the organ by the defendant and that the court was in error in giving the above instruction to the jury. It is also insisted that the court erred in refusing to give instructions offered by the defendant, and that the verdict finding the value of the organ to be $700.00 is flagrantly against the evidence.
If the first error complained of be without merit, then the second one complained of would necessarily be so. But, postponing for the present the consideration of these questions, we will first dispose of the last error relied upon. A number of witnesses besides plaintiff, who, according to the testimony, were vessed in such
The defendant was a bailee of the organ under its contract to remodel it, by which it agreed, according to the undisputed proof, to repair it so as to convert it into one playing perforated 65-note music. There is absolutely no testimony that defendant agreed to undertake to make the repairs, only, without assurances of success, as it alleged in its answer. It did not perform or commence to perform its contract within the time specified, nor within a reasonable time after it was made, which duty the law would impose upon it in the absence of a specified time. Plaintiff then at any time thereafter had the .right to abandon his contract and to seek ágainst defendant whatever relief the law would afford him. Under such conditions the law seems to be well settled that the bailor, if a chattel has been rendered worthless by the bailee, may treat it as a conversion and sue the bailee for its value. 2 Parsons on Contracts, page 137; 6 Corpus Juris, 1165. In the last work referred to the text says:
“Where an article is intrusted to a bailee for alterations or repairs, and by reason of deviation from the bailor’s instructions, or negligence, or of unskilfulness, the work is not properly performed, the bailor may sue for the breach of contract to repair, in which case the measure of his damages is the difference in the value of the article in its present condition and what it would have been worth if the. work had been properly performed; or, if the article has been converted, by the bailee or has been so seriously injured by him as to have practically lost its value to the bailor and has accordingly been abandoned to the bailee, an action may be*551 brought in trover and plaintiff may recover the value of the property.”
This is not only supported by most respectable authority, but it is the essence of sound legal reasoning, and we do not hesitate to adopt it as the correct legal principle. Here the proof shows that at the expiration of more than four years nothing remained of plaintiff’s organ but a lot of disconnected parts, of no value except perhaps as junk, and plaintiff had the right to treat defendant’s conduct as a conversion of his organ and to sue for its value. A different state of case might have been presented if the organ had not been rendered worthless through' defendant’s conduct, but we have no such conditions here.
We therefore conclude that since there was no material contradiction in the testimony relating to the nonperformance of the contract, the court did right in submitting to the jury only the value of the organ.
Clearly the effort to repair or restore the organ after the long delay, and after plaintiff had taken steps to assert his rights in court, could not cure the wrong nor relieve - defendant of the • consequences. According to the testimony of its president, after the matter was placed in the hands of an attorney, the defendant “got busy” to repair the organ, but this awakening to its obligation was too late for it to be benefitted thereby, since the law in a case like this ascribes no saving grace to such tardy repentance.
A thorough consideration of the entire record fails to reveal any prejudicial error committed at the trial, and the judgment is therefore affirmed.