Kreiss v. Swinehart

KOFORD, P. J.

Plaintiffs were furniture dealers. They brought this action in replevin against their customers, the defendants, for possession of four oriental rugs. Judgment was for the defendants. Plaintiffs appeal from the judgment and from an order denying a new trial.

The issues in the case relate to whether the defendants had purchased the rugs outright or whether they held the rugs under a lease contract. The defendants had been customers of plaintiffs for a number of years and had purchased large amounts of furniture. The plaintiffs had been in the habit of extending, or at least the defendants had been in the habit of enjoying, very liberal terms of credit on these purchases. However, no lease contracts were employed by the parties in their dealings with each other prior to the rug deal involved here. Commencing in May, 1921, various rugs were by plaintiffs put down in defendants’ residence for trial, but it was not until about October 1, 1921, that defendants settled upon and selected the four certain rugs described in the complaint herein. At that time the defendants delivered to plaintiffs one oriental rug previously purchased and paid for by them which was by the plaintiffs accepted as equivalent to the payment of $1,900. There was no express agreement about the terms of payment or credit. A few days later the manager of plaintiffs’ rug department called at defendants’ residence and procured defendant, Mrs. Swinehart, to sign a lease contract of the

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rugs. This is not the lease contract involved or relied on here. Two further payments of $500 each were made on the rugs, but one of these payments was applied by the plaintiffs to the defendants’ general account.

On June 21, 1922, plaintiffs’ manager called upon both defendants at their residence, At this time a further payment of $500 was made. At the request of plaintiffs’ manager the defendants both signed at this time a form of lease which, after describing the four rugs, stated, “This is to certify that (defendants) have this day leased of (plaintiffs) the goods described above, value $7,410, subject to the following terms.’’ The lease then recited $1,900 credit for the rug turned in, $500 credit for one of the $500 payments previously made, and a further credit of $500 for a payment on the then date. It provided that further payments should be made on October 1, 1922, January 1, 1923, and March 31, 1923. It provided that should plaintiffs fail to make any of the specified payments then the defendants agreed to surrender and return the said goods to plaintiffs. The lease also contained other provisions including a recapture clause for breach of covenants. This is the lease involved in this action.