Home Payment Jewelry Co. v. Smith

JAMES, J.

Appellant sued to recover possession of personal property consisting of certain articles of jewelry and for damages. A demurrer was interposed to the amended complaint, which was sustained by the trial court. Appellant declined to take advantage of the leave given to further amend, and from a judgment of dismissal this appeal was taken.

[487]

In the complaint it was set out that the appellant had delivered to one Mary C. Ames under a lease contract, which was set out in full as an exhibit attached to the amended complaint, certain articles of jewelry of the alleged value of one thousand and eighty, dollars. The contract as set out provided that the articles of jewelry were leased to the said Mary C. Ames for a term of ten months for the total rental of one thousand and eighty dollars, which rental was to be paid, one hundred dollars in cash and the balance in monthly payments of one hundred dollars. The contract also contained these conditions:

“2nd. And-1 further agree not to let the above goods go out of my possession without first notifying said Home Payment Co. and having first obtained their written consent; and I assume all responsibility of loss or damage of said goods for any cause whatsoever.

“3rd. It is also agreed that in the event that I shall fail to pay any monthly installment when due, the said Home Payment Co. may at their option take possession of said goods and cancel this lease, and that said Home Payment Co. shall be entitled to retain all sums paid by me as a reasonable compensation for the use of said goods and for their trouble and expense in connection with this transaction with me.”

In the complaint it was alleged that the lessee had failed and refused to comply with the -terms and provisions of the contract; that she had paid the sum of seven hundred dollars on account of rental of the property, but had defaulted in the payment of the balance due; that plaintiff had made demand on her for the payment of the balance but she had refused to pay the same. This allegation then followed: “That after obtaining possession of said property from plaintiff as aforesaid, the said Mary C. Ames, without plaintiff’s consent and against the will of plaintiff, concealed said property from plaintiff and transferred and delivered the same to other parties. That prior to the commencement of this action the defendants herein obtained possession of the said aforesaid personal property, either directly or indirectly, from the said Mary C. Ames; and the said defendants are still in possession of said property, and, without plaintiff’s consent and against the will of plaintiff, are detaining said property from the possession of plaintiff. That prior to the