Rudolph Wurlitzer Co. v. Cutting

California Court of Appeal Feb 28, 1924 No. Civ. No. 4593.Published

Before: Sturtevant

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Holding. The court held that the plaintiff was entitled to recover the unpaid balance on a piano sale contract from both the agent who signed the agreement and the undisclosed principal, and that the alleged delay in repairs did not constitute a valid defense.

Issues

Whether a plaintiff may hold both an agent and an undisclosed principal liable for a contract debt.
Whether a delay in performing repair services under the contract constitutes a valid defense to an action for the unpaid purchase price.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Under such a state of facts the plaintiff was entitled to hold either the principal, when discovered, or the agent.”

“As the matter appears on the face of this record the delay in making repairs does not constitute a defense to the action.”

[39]

STURTEVANT, J.

The plaintiff commenced an action against the defendants to recover the unpaid balance alleged to be due on the sale by the plaintiff of a certain piano. The trial court awarded a judgment in favor of the plaintiff and the defendants have appealed.

The judgment of the trial court was based on findings of fact which included, among others, a finding:

“That heretofore, to wit: on the 2nd day of June, 1922, at the city and county of San Francisco, State of California, the said plaintiff sold to the said defendants one Wurlitzer piano (used) Style AX, #38637, to be used at said Daisy Farm Inn, and at said time and said place the said defendant, Henry C. Cutting, for and on behalf of both defendants herein, made, executed and delivered to the said plaintiff an agreement in writing, 'by which the said defendants agreed to pay for said piano, the sum of Twelve Hundred Fifty and 00/100 (1250.00) Dollars-; that a copy of said agreement is annexed to the Amended Complaint on file herein and marked ‘Exhibit A.’

“4.

“That at the time of the entering into of the agreement above referred to the said plaintiff agreed to install said instrument in the Daisy Farm Inn and to furnish service for the purpose of keeping said instrument above referred to in repair and adjustment, and that the said plaintiff did so install said instrument and did furnish said service to the said defendants whenever so requested by them.”

The Exhibit “A” referred to in the findings commences,

“San Francisco, June 2, 1922.

“I promise to pay to the order of The Rudolph Wurlitzer Company of California, a corporation, ... I admit receipt of said instrument in good order, and I agree to keep the same in good order, ... I agree that there is no warranty that said instrument is sound or merchantable. ... I also agree that The Rudolph Wurlitzer Company shall not ¡be bound by any agreements or representations not contained in the foregoing which I have read and understand.

“Henry C. Cutting.

“Witness: Francis M. Madsen.”

Rudolph Wurlitzer Co. v. Cutting

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STURTEVANT, J.

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