O'Donnell v. Wing

Lamar, J. (After stating the foregoing facts.) The piano was shipped to Jones on a “trial order.” The case is not to be controlled by the question as to whether the defendant paid full value, but by determining whether Jones, in June, 1901, had a title, and the consequent right to sell to Mrs. O’Donnell. On April 1, 1901, he ordered the plaintiff to ship the piano, agreeing to take it on trial for twenty days, and if it proved satisfactory he would pay $230, of which $65 was to be cash and the balance in monthly payments. If the piano did not prove satisfactory, he agreed to have it boxed and returned to the depot to be held at the plaintiff’s disposal. This amounted to a bailment, and not a sale. But it is manifest that time was important in determining the status of each party. If during the twenty days, and before he had expressed his satisfaction, the instrument had been [720] destroyed, the loss would have fallen upon the bailor, as owner. But if, without otherwise expressing satisfaction, Jones had retained the instrument after twenty days (Newburger v. Hoyt, 86 Ga. 508), and it had thereafter heen destroyed, the plaintiff would, undoubtedly have been authorized to recover the purchase-price of him. If the title was in him as owner to bear the loss (Civil Code, § 3543), it was in him for purposes of sale. The “trial order” did not provide for a mere option. The terms of the agreement were definite. Nothing more was needed to make the. minds of the parties meet so as to complete the sale. By the. . expressed language of the order Jones agreed to buy, if, after the twenty days trial, the piano was found to be satisfactory. That, agreement was assented to by the plaintiff when she shipped the instrument. The question, therefore, of sale or no sale depended upon satisfaction or dissatisfaction to be determined within a given period. And by retaining the instrument beyond the time limited Jones by his conduct expressed such satisfaction as made the sale absolute. For a breach of the agreement to pay the cash and monthly balances due by reason of such satisfaction he became liable in an action to the plaintiff, who may yet maintain the same. Corvallo v. Humphreys, 16 East, 330 (1812). In addition to retaining the piano it appears that Jones sold it. to the defendant. There are cases which hold, that under shipments on trial order the fact that the article so received is sold to a third person is itself such an expression of satisfaction as to complete the sale. Title then passes from the seller to him who has obtained possession under a trial order with right to purchase on given terms if the property proves satisfactory. Delemater v. Chapell, 48 Md. 253. On the general subject of trial orders, see 2 Benj. Sales (Corbin’s ed.) §911; 1 Meehem on Sales, 663 et seq. As to sale or return see Newburger v. Hoyt, 86 Ga. 508; Ferst v. Commercial Bank, 117 Ga. 472. A witness for the plaintiff testified as to the value of the piano, when it was shipped. He stated that he had not seen it between that date and the time of trial; that if it was in the same condition as when it left the premises, it was worth $230; and that it was worth “about $4.00 for hire.” There was no evidence whatever as to its condition at the time of delivery to the defendant. and no other evidence as to what would have been a reason [721] able hire for its use. The court should have sustained that ground of the motion. for a new trial based on the direction of a verdict for tbe plaintiff for $4 a month rent.. Judgment reversed. All the Justices coneur.