Burrier v. Cunningham Piano Co.

Thomas, J., delivered tbe opinion of the Court. Tbis appeal is from a judgment of tbe Superior Court of Baltimore City in favor of tbe plaintiff in an action of replevin. ' Tbe suit was begun on' tbe 14th of November, 1917, by tbe filing of a replevin bond,'’which wlas approved by the clerk of the Court, and a declaration in which tbe plaintiff, the Cunningham Piano Company, a body corporate, alleged that ¹³⁷ the defendant, Ella J. Burner, “seized and took the goods and chattels of” the plaintiff, “to wit, one Forrest Piano Player, Style No. 47980,” located in Baltimore City, “of the value of $250.00 current money,” and “unjustly detained the same in” said city; “whereupon” the" plaintiff “says it is injured, and has sustained damage to the value of five hundred dollars, lawful money, and thereupon it brings this suit.” The property was replevied and appraised, and was delivered to the plaintiff on the 21st of November. Oln the 6 th of December the defendant filed a plea alleging that shei did not take the property, and a further plea that at the time of the issuing of the writ, “the property in the goods and chattels mentioned” was in her. A replication was filed to the second plea, and the case was tried before the Court, without a jury, on issues joined on the first plea and on the replication to the second plea, and the trial resulted in a judgment in favor of the plaintiff “for the goods replevied or their value $250.00, one cent damages and costs of suit.” There are four exceptions in the record; the first three of which are to rulings of the Court on the evidence, and the fourth to the rejection of the four prayers of the defendant.

The evidence produced by the plaintiff was taken under a commission issued to Philadelphia, Pennsylvania. The plaintiff offered in evidence the following receipt, contract and assignment thereof: “Feb. 11, 1913. “Received of Cunningham Piano Company, in good condition, 1 Forrest Player Piano, style Moh No. 47980, same received on consignment as per terms of contract. “(Signed) William B. Mason.” “June 14, 1913. “William B. Mason, 1 Forrest Piano, Style-, No. 47980, for the price of • Five Hundred Dollars ($500.00), and 1 old upright piano in exchange, $65.00 allowed, of which the sum of $25.00 to be paid in cash, and the balance of $405.00, with interest at six per cent. (6%) to he paid in stallments of $10.00, each ¹³⁸ installment to be due and payable on the 14th day of each month. This contract is given for the conditional purchase of the above instrument; the conditions of which purchase are that the same instrument remains the property of William B. Mason, or his assigns, until ' the purchase price is paid in full, and on default of payment of any monthly installment or if said piano is relet or moved from the premises I now occupy at ........, without the written consent of William B. Mason, or his agent, then in either event all of the said purchase price shall immediately become due and payable, and the said William B. Mason, or his agent, may at any time resume possession of said instrument, with or without legal process, but if the purchase price named in this contract for said instrument is fully paid according to the stipulation herein, then said instrument becomes the property of the undersigned.

And I further agree to bear all losses in case of fire. I do hereby certify that I am of full age and have the legal right to make the above contract. “(Signed) Ella J. Burrier, (Seal) “1837 South Charles Street. “Witness: “W. B. Mason. “Eor value received, I assign this lease to the Cunningham Piano Company, same to he held by them until the consigned value is paid. “(Signed) William B. Mason.” Patrick J. Cunningham, secretary and treasurer of the Cunningham. Piano Company, testified that he did not know the defendant, Ella J. Bnrrier, but that the plaintiff “had business relations with her”; that the plaintiff' shipped a piano to William) B. Mason, in Baltimore City, and received “a lease, with the signature of Mrs. Ella J. Bnrrier”; that the order sent by Mr. Mason to the plaintiff was received by the plaintiff on July 14th, 1913, and the piano was received by the defendant August 1st, 1913; that the defendant paid, “according to her card,” $215.00 on the piano, during the ¹³⁹ period from August 1st, 1913, to April 18th, 1917, and that the plaintiff issued a replevin for the piano because it was not paid for according to the contract or lease. On cross-examination he further testified that the plaintiff was a corporation of the State of Pennsylvania; that the agreement or lease signed by the defendant was assigned by Mr. Mason to the plaintiff; that Mr. Mason was no longer in the employ of the plaintiff, and that he did not know where he was; that he, witness, did not see Mrs. Burrier sign the contract, and he did not make the entries on the card, but that they were correct according to the plaintiff’s hooks; that he “personally” never made any demands upon the defendant for payments; that the plaintiff shipped pianos to Mjr.

Mason “under consignment,” and that he sent the plaintiff the agreement for the piano in question “signed by Mrs. Burrier.” John L. Dineen testified that he had been bookkeeper for the plaintiff for thirteen years; that all he knew of the transaction between the plaintiff and Mrs. Burrier was from the original entries made in the books of the plaintiff “on account of 1 Eorrest Piano Player No. 47980.” When asked to explain how the records were kept, he said that the general “mode of procedure” was for the consignee to remit to the plaintiff in monthly installments the amount required from him under the “consigned agreement,” hut where a particular contract is assigned to the plaintiff, the plaintiff “makes collections” of the payments due thereon. He was then asked to state what was done in this case. The defendant “objected to the witness answering” the question, but the Court overruled the objection, and the first exception is to the action of the Court permitting the answer to said question to be read as follows: “A- Just as I stated it, the consignee did not keep his consigned agreement, and the Cunningham Piano Company proceeded to exercise authority vested in them by their part of the agreement, and made collections on this particular contract.” The witness was then asked if he could state from his own knowledge what payments were made by the defendant on account of the piano in suit, and he testified ¹⁴⁰ to twenty-nine payments from August 1st, 1913, to April 16th, 1917, amounting to $215.00, and gave the date and amount of each payment. The second bill of exceptions then states-: “Said witness having stated under said testimony in said commission that no other payments had been 'made on account of this- piano, the defendant moved that said state-, ment be stricken from said commission, but the Oourt refused said motion and permitted said testimony to be read in said case.” The witness further testified that he did not know what was done with the piano after it was replevied, and that his knowledge of the replevin suit was obtained from the plaintiff’s books; that the natations in the books were memoranda of correspondence with the defendant, and refer to “delinquency in payments”; that about thirty-five letters were written to her to which there was “occasionally a reply”; that he did not make the notations or entries, or mail the letters-, but that copies were preserved; that all of the contracts do not go through his hands and that the notations and entries were made by different clerks.

The third bill of exceptions then contains the following statement: “And thereupon and before said testimony in relation to said witness’s knowledge of the correctness of said notations and said entries in said books and on said records were read into testimony of said trial, the defendant moved that said testimony be stricken from said commission; but the Oourt refused said motion and permitted said testimony to be read in said case.” The defendant testified that she bought the piano from Mr. Mason, and that “it was taken away from her recently”; that she did not know of any contract between Mr. Mason and the plaintiff, or of any assignment by him to the plaintiff. She produced in evidence receipts for payments made by her on account of the purchase price of the p-iano, which correspond with the payments testified to by the bookkeeper of the plaintiff, with the exception of the first payment of $10.00 which was made to William B. Mason. All of the receipts were signed by the Ounningham Piano Company except the first two, which were signed by William B. Mason, and the last ¹⁴¹ three receipts, which were signed by,Bartlett, Poé and Cla gett, attorneys. She further testified that the first receipt, dated June 10th, 1913, for $10.00, was signed by William B. Mason, from whom she bought the piano; that she did not pay “full amounts according to the contract,” and that Mr. Mason never said anything about it; that she made ten payments to the Cunningham Piano Company, in Philadelphia, by registered letter, “and always got receipts from them”; that she “made no payments since” April, 1917; that she got a letter directing her to make payments to Bartlett, Poe and Claggett, attorneys, and that she made three payments to them; that she never got “any word” from the plaintiff about her payments not being regular, or about anything “until they came and replevied the piano”; that she told Mr. 'Mason she conld not make a payment of $10.00 every month, and that he told her she should pay as she could pay, arid that she paid in that way, sometimes $10.00 and sometimes' $7.00; that, she “got some communications from Philadelphia, but could not tell when” she “got the last one”; that the reason she “let it go that way” was “because I had sickness and I was in’ the hospital and that was the cause of my not páying it”; that she never wrote to the plaintiff to explain why she had not made further payments, and that she never received a letter from the plaintiff “making any demand” on her to “pay "anybody representing” the plaintiff. ‘ • " • At the close of the testimony the defendant' offered four-prayers, all of which were rejected.

The first and Second prayers sought to withdraw the case from the jury 'on thé ground that there was no “legally sufficient evidence to entitle the plaintiff to recover,” the first prayer referring ’to" the pleadings. ' " ■' The narr.j which was