Clark, Wise & Co. v. Hauschildt

KERRIGAN, J.

In this action the plaintiff sought an accounting from the defendant arising out of a contract between the parties, by the terms of which the defendant was to conduct a sale or sales of certain stock of pianos and other musical instruments purchased by him from the plaintiff, and also such other goods and merchandise as the defendant might elect to dispose of in connection with such sales.

The facts of the case out of which the contract arose and the alleged liability for an accounting grew, are substantially these: The plaintiff had been engaged in the business of dealer in pianos and other musical instruments for years at its store at No. 233 Grant Avenue in the city of San Francisco, but-was desirous of retiring from business at that place in the early part of the year 1911. The defendant also was engaged in conducting a music store at No. 51 Grant Avenue in said city and also in the city of Oakland. A contract was made between the parties on February 8, 1911, by the terms of which the plaintiff agreed to sell and the defendant to buy the entire stock of goods and merchandise of the former located at said No. 233 Grant Avenue or elsewhere, paying the invoice price therefor, which said stock of goods, together with such other goods and merchandise as the defendant might elect to sell at the same time, were by the defendant to be advertised and sold at special sale or sales to be conducted in the name of the plaintiff for a certain period, and

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afterward under any name the parties might elect, which sale ■ or sales it was agreed should extend over a period of at least sixty days, and longer if considered advisable by the parties upon the same terms. It was not directly stated in this contract where such sale or sales were to be conducted, except that for the first sixty days the sales were to be conducted at the store of the plaintiff, the occupancy and rental of which during said period was to be at the expense of the defendant to the extent of the sum of eight hundred and seventy-five dollars, payable monthly in advance. Out of the proceeds derived from such sale or sales the defendant was to pay to plaintiff twenty per cent of the gross profit if less than twenty thousand dollars in monthly sales, and twenty-seven and one-half per cent of such gross profit if such monthly sales amounted to twenty thousand dollars or over. In accordance with this contract the defendant on March 1, 1911, took charge of the plaintiff’s stock and store, and advertised and conducted such sale or sales there up to April 30, 1911. According to the averments of the plaintiff’s complaint, it was then considered advisable by the parties to continue such sale or sales and the advertisement thereof for a longer period, and to conduct the same in the name and under the management of the defendant and at his places of business at No. 51 Grant Avenue in the city of San Francisco, and also in the city of Oakland. This was done during April and May, 1911, the defendant continuing to advertise the stock of goods on sale as the Clark, Wise & Co.’s stock, and continuing to sell the same during the said two months. Having declined to account for the sales of these two latter months, or to pay plaintiff its percentage on the gross profits thereof, this action was brought by plaintiff to compel such accounting and settlement.