Wickersham Banking Co. v. Nicholas

CHIPMAN, P. J.

This is an action upon two certain written instruments, one for $150 and one for $125, and, except as to the amount and date of maturity, both were in the form following:

“$150.00.

Petaluma, June 20th, 1901.

“For value received, thirteen months after date I promise to pay to the order of P. H. Eigholz one hundred and fifty dollars in United States gold coin, with interest in like gold coin at the rate of 6 per cent per annum. The consideration of this and other notes is a Heine piano, No. 11,334, which I have received of -said P. H. Eigholz. Nevertheless, it is understood and agreed by and between me and said P. H. Eigholz or his assignees, that the title to the above-mentioned, property does not pass to me, and that until all said notes are paid, the title to the aforesaid property shall- remain in the said P. H. Eigholz, who shall have the right, in ease of nonpayment at maturity of either of said notes, without process of law, to enter and retake, and may enter and retake immediate possession of said property, wherever it may be, and remove the same. I further agree not to remove said piano from Petaluma without the consent of P. H. Eigholz or the party to whom this note may be assigned by indorsement. Payable at Petaluma. Due July 20th, 1902.

(Signed) “MRS. CHAS. NICHOLAS.”

Indorsed: “Heine Piano Co., per P. H. Eigholz.”

The action was dismissed as to the defendant Chas. Nicholas. Mrs. Nicholas had purchased the piano above re

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ferred to from the defendant piano company at the agreed price of $350, payable in installments, of which $50 was paid on delivery of the piano, the contract being the common form by which the title to the piano was to remain in the company until all the installments were paid. Appended to the agreement of sale was a provision that the price would be reduced to $325, “if paid by July 20th, 1902, in accordance with two collateral notes of $125.00 and $150.00 granted by Mrs. Nicholas of even date herewith,” and was signed “Heine Piano Co., J. A. Swan, Mgr,” The notes in question were given pursuant to this provision. The court found that Mrs. Nicholas executed the notes “in consideration of the reduction stated in said contract and agreed to by the said Heine Piano Company,” and delivered the notes to Eigholz; that Eigholz “wrote upon the back of each of said instruments the words ‘Heine Piano Company, per P. H. Eigholz,’ and delivered the same to the plaintiff for a valuable consideration”; that the instruments, at maturity, were presented -to the maker and payment demanded and notice of protest given against the defendants Heine Piano Company and Eigholz; that the money paid by plaintiff for said notes was paid to Eigholz and by him paid to the piano company with plaintiff’s knowledge, but- that the piano company had no knowledge, at the time Eigholz paid the money to it, of the existence of the said notes or of their transfer to plaintiff by Eigholz, or of the indorsement of the name of the piano company thereon; and that the company is not estopped to deny the agency of Eigholz to make the said indorsement. It was further found that Eigholz had no authority to indorse said instruments or any instruments, on behalf of the piano company, or to execute and deliver or indorse any commercial paper on behalf of said company; that he “was a salesman in the employ of said defendant [the company], and that his powers as agents were only those powers which were implied from his employment by the defendant Heine Piano Company as a traveling salesman”; that the instruments sued upon “are not negotiable promissory notes, or promissory notes at all.” Defendant had judgment from which and from the order denying its motion for a new trial plaintiff appeals on statement of the case.