George J. Birkel Co. v. Nast

SHAW, J.

Action to recover upon a contract for the conditional sale of a piano made by plaintiff to defendant. Judg

[653]

ment went for defendant. Plaintiff moved for a new trial, which was denied, and it appeals from the order denying its motion, as well as from the judgment.

At the time of the delivery of the piano to defendant she executed a contract whereby she agreed to pay therefor to plaintiff the sum of six hundred dollars, as follows: Ten dollars upon the signing of the contract, and at least ten dollars on the eighth day of each month thereafter, together with interest, until the whole sum was paid, and that until said sum and interest should be fully paid the piano should remain the property of plaintiff, but upon full payment title thereto should vest in defendant; in addition to which, the contract contained the following clause: “I also hereby agree that if I fail to pay any of said monthly installments when due, or to fulfill and keep any other of the aforesaid conditions, thereupon George J. Birkel Company may enforce payment of all of said sum of $600 then unpaid and interest' thereon; or, at its option, George J. Birkel Company may retake possession of said piano without legal process, and for that purpose may enter any premises where the same may be, and thereupon without further notice terminate this contract.” Defendant made default in the monthly payments, which by the terms of the contract she was required to pay; whereupon plaintiff brought this action for the unpaid balance of principal and interest, and caused to be issued in said suit a writ of attachment under and by virtue of which the sheriff levied upon and took into his possession the piano, which he stored in a warehouse owned and controlled by plaintiff.

Upon these facts, the court found that title to the piano did not vest in the defendant by reason of the action brought by plaintiff, in the exercise of its option, to recover the purchase money which defendant had agreed to pay; that the taking of the piano by the sheriff under the writ of attachment and storing it in plaintiff’s warehouse was a recaption thereof by plaintiff; that under the terms of the contract title could not vest in defendant without her consent, and that she never assented thereto.

These findings, consisting of a jumble of both law and fact, cannot be sustained. The provision of the contract to the effect that the title to the piano should remain in plaintiff until payment of the full purchase price thereof was inserted for the purpose of securing such payment, and therefore -was