Silverstin v. Kohler & Chase

WILBUR, J.

Plaintiffs, husband and wife, brought this action to recover from defendants the value of a certain piano

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belonging to the plaintiffs, alleged to have been converted by the defendant, and for damages for personal injuries suffered by the plaintiff Ida Silverstin at the time of the forcible taking of such piano, and for punitive damages. The court rendered judgment for $350, the value of the piano, and for $150 actual damages for personal injuries suffered by the plaintiff Ida Silverstin. The controversy between the parties grows out of an agreement entered into between defendants’ assignor, S. Borax & Co. and I. Silverstin, relating to said piano, dated October 10, 1913. This contract purports to lease the piano in question for five hundred dollars, $110 of which is acknowledged to have been received, and. the balance of $390 agreed to be paid in monthly installments of $10, commencing on the first day of November, 1913. The contract also provides:

“3rd. When all of said rental with interest thereon as aforesaid is paid, then upon the payment by.me of. one dollar, as consideration therefor, the title of said instrument is to be vested in me, and S. Borax & Co. is to give me a bill of sale of the same.

“4th. It is also agreed that in the event that I shall, refuse to accept delivery of said instrument, or fail to pay either of said monthly installments, or interest thereon at maturity, or violate any provision of this lease, then at the option of S. Borax & Co. all of said rental, together with interest thereon as aforesaid, shall in either of said cases immediately become due and payable, and S. Borax & Co. may at its option upon such default enforce payment of the entire sum then unpaid and interest thereon, or S. Borax & Co. may, at its option, take possession of said instrument and cancel this lease, and in that event I hereby, agree to surrender and return said instrument to it in as good condition as when received, customary wear by careful usage excepted.”

S. Borax & Co. assigned their interest in the contract and in the piano to the defendants Kohler & Chase. The plaintiffs paid $20 and no more. In June, 1915, defendant sued I. Silverstin for the monthly payments then due, amounting to $140 principal and $27.30 interest, obtaining a judgment therefor, which judgment has never been paid. Plaintiffs failed to pay any subsequently accruing installments and on July 19, 1916, defendants took possession of the piano. It is asserted that the trial court decided the case on the theory that the contract in question was a conditional sale; that the