Werner v. Jaruga

Butzel, J. Plaintiff styles this suit a bill for specific performance of a pledge agreement. Defendant is a music dealer in metropolitan Detroit. Plaintiff claims that about June 1, 1937, he purchased from defendant a violin case and bow for $62.29; that he paid down $15 on the purchase and left as security for the balance a three-quarter size violin which he alleges to be a genuine Gruarnerius of great value; he further claims that his subsequent payments on account have reduced the balance to $18; plaintiff’s tender of this balance to redeem the alleged pledge was declined. Plaintiff testified that the violin left with defendant and still in his' possession had been purchased on July 17, 1922, from J. Adolph Krug, for many years a maker of and dealer in violins. It was a three-quarter size, the type used largely by. younger students and not preferred-by- older musicians. Mr. Arthur K. Krug, who was employed by his father at the time plaintiff purchased the instrument in 1922, testified that he has been engaged in the violin *619 business for many years, that he had sold a violin to plaintiff for $50, and that he made out in his own handwriting the receipt which was produced in evidence. He stated that the label “Guiseppe Guarnerius 1720” was not in the violin he sold, plaintiff, and that the varnish was not the same as that on the instrument produced in court. In contradiction to plaintiff’s testimony, defendant claimed that he acquired the violin in question in 1930 by allowing credit for it on a trade, and that at the time he sold plaintiff the case and bow, plaintiff traded in a cheap violin for credit on the purchase rather than as security. This instrument, he says, was disposed of in the course of trade. Plaintiff sought to identify the- instrument he claims he pledged by distinguishing marks made by a tuning fork; defendant claims that the marks were made by the scraping of the bow against the violin when carried in the case rather than by a tuning fork. Mr. Arthur K. Krug testified that the mark on the violin appeared to have' come from the bow when placed in the violin case and not from the sharp point of a tuning fork. Defendant does have in his possession an instrument bearing the famous Guarnerius label, and if it be authentic, its value is said to be almost inestimable. Plaintiff claimed the right to redeem the pledge shortly after Detroit newspapers featured defendant and his instrument, which -is believed to be genuine. The sole issue is one of fact. We are much impressed by the proofs offered on behalf of plaintiff; we must also be mindful of the testimony of defendant’s witnesses which flatly opposed plaintiff’s version. While it is true that in equity appeals our scope of review of the facts is broad (Sun Life Assurance Co. of Canada v. Allen, 270 Mich. 272), we are slow to substitute our judgment on the question *620 of credibility for that of tbe trier who bad tbe witnesses before bim. Grudzien v. Ziolkowski, 294 Mich. 451. The trial judge found that tbe mark on the side of the violin was made by tbe scraping of the frog of the bow against tbe violin while contained in the case; be also believed the testimony of Mr. Krug that tbe varnish on the violin and tbe label on tbe inside were different from those features on tbe instrument sold to plaintiff. Under the circumstances, tbe conclusion of the trial court must be affirmed. Tbe decree is affirmed, with costs to defendant. Bushnell, C. J., and Sharpe, Boyles, Chandler, North, McAllister, and ’WiEST, JJ., concurred.