133 Iowa 552 | Iowa | 1907
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*555 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) Eor 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 fo 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. M.y 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, postoffice 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 ldnd 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: E. O. Evans.
We hereby accept the above contract of proposal this 15th day of .May, 1901.
E. 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 $850, $100 of which
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 át 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 Eebry 10th, 1903, Cedar County State Bank.” On or about August 16, 1902, Evans wrote a letter to plaintiff
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. Wick-ham 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 letter paper of the General Western Agent: “ Des Moines, Iowa, Eeb. 12, 1904. Mr. Henry Wickham, Dewitt, Iowa — Dear Sir: We received notice from our Mr. T. McKenna some time since that he had called on you, found the piano somewhat damaged, collected $75.00, and returned the piano to the factory. This $75.00 we applied on your $100.00 note due Jany 1st, 1903, leaving a,balance due us of $125.00. Some time last
Attention is again directed to the description of the $100 note, upon which the credit is said to have been made. That note was the one which plaintiff had- already paid to the Cedar County State Bank, and there was no other like it. Thereafter plaintiff demanded the return of his piano, and, as defendant refused to comply with the demand, he commenced this action September 4, 1904, alleging that it was agreed that plaintiff should retain the $25 which he admitted was due upon the last note to insure himself against any expense in putting the piano in condition to comply with the warranty. The trial court rendered judgment for plaintiff for the value of the piano, $350, less the sum of $47.67 due from him to the company. Erom this statement it will be observed that plaintiff has paid all that he agreed to for the piano save the $25 with interest, and that he has neither organ nor piano. He is therefore entitled to the judgment given him by the trial court unless he is to be held responsible for the defaults and delinquencies of defendant’s agent, or by reason of the facts and circumstances should be held liable on the mortgage note for $200 less the credit of $75 which is indorsed thereon. Defendant Evans claims, as we understand it, among other things, that he is an innocent holder of the note and is entitled to recover thereon in his individual behalf. The testimony in this regard is that he as agent sold the mortgage note to himself as an individual; that he advanced the money to his company for the piano and took the note. Diltz was defendant’s agent, as will appear from the contract we have set out, and as such he perpetrated or attempted to perpetrate a fraud either upon plaintiff or upon his company. The
We doubt if Evans purchased this note. It was turned in to the company by its agent Diltz and so received by Evans. He as general agent, says that he transferred it to himself as án individual; but the transaction was manifestly not in the usual course of trade. He simply advanced money for a piano which the company had always regarded as belonging to it or to the plaintiff; and Evans’ letters show that he regarded the note as belonging to his company, and not to himself. Manifestly the company could not recover upon this note, nor do we think that Evans can. In his correspondence about the note, Evans shows that he was writing about the $100 note which plaintiff paid, for that was the only one maturing January 1, 1903. No part of the mortgage note had then matured. He collected the $75 as being upon the last $100 note; for the remaining $25 was to be retained by plaintiff to indemnify him against any freight or other charges on the piano. Surely Evans must have known 'from reports from Diltz, the nature of the original transaction, and that the three separate notes were given. How else could he know of the maturity of the first $100 note? Indeed Diltz, who was a witness, testified that he informed Evans as to the separate notes outstanding, and that they were1 secured by the mortgage note. Moreover, after the transactions in question, Evans went before the grand jury and had Diltz indicted for embezzlement, and, before the grand jury, testified that Diltz had embezzled money coming into his hands as an agent, either for himself or for the piano company. On January 13, 1904, Evans wrote Wickham that they had not sold his note, that he could make a $75 payment thereon, and that the piano would be repaired. After the $75 had been collected, Evans wrote upon a letter head of the company, “we have applied this upon ypur $100 note maturing January 1, 1903.” Under
The judgment seems to be right, anddt is affirmed.