Bennett Piano Co. v. Scace — 130 A.D. 281

Majority

p. 281

The Bennett Piano Company, Appellant, v. Roy Scace, Respondent.

Third Department,

January 6, 1909.

Headnote

Sale — principal and agent — payment to agent — facts, showing authority to collect.

Action for the conversion of a-piano leased to the defendant under an agreement by which the lessee was entitled to a bill of sale of the instrument on completing certain payments. The defendant had made payments to agents of the plaintiff and had been given a bill of sale by one of them, but it was claimed by the plaintiff that the authority of the agent to collect had been revoked. On all the evidence,

-Held, that a verdict for the defendant was warranted by the evidence.

Appeal by the plaintiff, The Bennett Piano Company, from a judgment of the County Court of Schoharie county in favor of the defendant, entered in the office of the clerk of said county on the 8d day of October, 1908, upon an order bearing date the 10th day of February, 1908, and entered in said clerk’s office affirming a judgment of a justice of the peace of the town of Schoharie. The action is brought for the conversion of a piano leased to the defendant by the plaintiff under a written lease providing that the

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defendant should have the piano for the term of thirty months from the 15th day of April, 1907, at a rental of $300 for the full term, payable in installments of $10 a month, with $10 down, and that interest should be paid quarterly On the balance remaining unpaid, and providing that when the full amount of rent and interest was paid the piano company should give to the defendant a bill of sale thereof. The lease was made on behalf of plaintiff by one Church. The defendant was given a duplicate of the lease, except thaton such duplicate there was inserted the words “Scace can pay more at' any time.” At the time of the execution of the lease the defends ant paid $10 on account thereof to Church. Several payments were thereafter made by the defendant to Church, and several to one. Knapton, the manager of the plaintiff,' under whom Church was employed. It was claimed on the trial that the plaintiff through Knapton had revoked the authority of Church to collect. The defendant denied this and denied that he had any knowledge of any such revocation. Church,- on October 8, 1907 ‘ collected $215 from the defendant, making $285 all told paid by him, and made a settlement, with him by deducting about $22 of the amount remaining unpaid on the lease, and gave him a bill of sale of the piano. Church failed.to pay the $215 over to the-plaintiff and this action followed. The jury on the trial in the Justice’s Court brought in a verdict of no cause of action, and the judgment on this: verdict has been affirmed by the County Court, and from such affirmance this appeal is-taken.

Alberti Baker, for the appellant.

S. E. Tennant and Charles E. Nichols, for the respondent.

The testimony of Knapton, the plaintiff’s manager, showed that Chtirch was employed by him as agent, and had authority to sell pianos for the plaintiff as well as authority to enter into a written contract for their sale, and that under his .employment he was authorized to make duplicate contracts, giving one to the purchaser and the other to the plaintiff, It is clear that he was also authorized to make collections. This was recognized by Knapton when he gave the defendant receipts for several installments of $10, each paid to Church by the defendant, the receipts for which the latter claimed

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to have lost. It was also recognized in the proof offered by the plaintiff tending to show the revocation of such authority. If the authority did not exist there was no need of revocation. The evidence as to whether or not the agency of Church to make collections had been revoked and as to whether or not the'defendant had knowledge of such revocation was.conflicting, but outside of the conflict between the testimony of the defendant and Knapton there was proof that Church sold a piano for the plaintiff on October 16,1907, and collected the money therefor. This was after the bill of sale was given by him to the defendant, and the testimony was in no way disputed or explained by the plaintiff. There was ample testimony to sustain the verdict of the jury in favor of the defendant’s contention with respect to the absence of knowledge on his part of the alleged' revocation of the authority to collect.

The defendant urges that Church, not having the lease in his possession at the time he collected the money, had, therefore, no right to make such collection; but the question here does not turn upon the possession of the lease but upon the authority which" the plaintiff had .given to Church as its agent. He had in the usual course of business given the defendant a, duplicate of the lease and Knapton had indorsed upon this duplicate a payment of rent made to him by the defendant. Knapton had also recognized Church’s authority to make collections by giving the defendant receipts for moneys collected by Church. The jury determined the disputed questions of fact in favor of the defendant’s contention on sufficient evidence. It was thus established that Church was the agent of the plaintiff; that he had- the right to make collections, and that the defendant had no knowledge of the plaintiff’s revocation of the agency at the time the payment of $215 was made and the bill of sale given.

These facts being established, there was nothing due the plaintiff on the piano at the time of the commencement of the action, even though it should be conceded that Church had no authority to make any deduction from the contract price when he gave the bill of sale to the defendant.

For these reasons the judgment should be affirmed, with costs.

Judgment unanimously affirmed, with costs.