Reed v. Cornell

WASTE, P. J.

The plaintiff, as assignee, brought this action to recover the possession of- a certain piano. He

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alleged that the defendant had entered into an agreement with the Heine Piano Company, plaintiff’s assignor, for the purchase of the instrument; that payment had not been made as required by -the contract; that by reason of the violation of the terms of the agreement, plaintiff was entitled' to a return of the piano. The defendant denied any indebtedness, and alleged that the piano had been fully paid for, and asserted title in herself. Judgment was entered for the defendant from which the plaintiff has appealed.

The contract for the sale of the piano provided for an initial payment of $40 upon the signing of the agreement, and monthly payments of $10 each, until the whole amount of $458, the purchase price, together with interest, had been paid. According to the plaintiff’s theory the defendant was in arrears $147.63, plus some additional interest, at the time of the trial. The defendant testified that she made payments on the contract until the sum of $185 had been paid. Becoming tired of making installment payments, she asked to be allowed to settle the contract in full. Her proposition was accepted and she paid the sum of $200 in cash, and received a receipt for full payment of the contract. This receipt she subsequently lost when moving from one house to another. The account-books of the Heine Piano Company showed the payments testified to by the defendant,' and what purported to be a subsequent additional payment of $50, made in the form of a liberty bond. This item was repudiated by the defendant as not having been made.

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Appellant’s major contention relates to the proof adduced in support of the defendant’s ease. He first contends that the evidence does not prove payment in full of the contract, but an accord and satisfaction, which, not having been specially pleaded, could not operate as a defense to the action. The well-settled rules of pleading in this state require an agreement of accord and satisfaction to be specially pleaded, before it can be availed of as a defense, but the appellant is not in position to urge the point for the first time in this court on appeal from the judgment.