A'Hern v. Lipsett

Hooker, J. The learned circuit judge directed a verdict for the defendant in this cause, and plaintiff has appealed. The action is replevin for some bar fixtures which defendant furnished to the plaintiff several years ago under a contract of sale; title being reserved. Defendant took possession of them for alleged nonpayment. It is admitted that the price to be paid according to the contract was $485, and interest at 8 per cent., in weekly payments of $10, and that $485 was paid, the first payment being made November 7, 1898, the last on November 27, 1905. [197] It is admitted that an amount equaling all accrued interest has not been paid. These payments were made to the local agents of the defendant (or to their bookkeeper, or driver of their beer wagon), and by them sent to the defendant’s home office, and there indorsed on the contract. During this period defendant was furnishing plaintiff with beer through its local agents at Sault Ste. Marie. The plaintiff had a book in which the beer account and an account of the payments on thé contract were kept on separate pages in defendant’s agent’s handwriting — a sort of passbook we infer — and this account1 showed some balances struck after payments, the last being: “Bal. 1905 —$45.” Below this were nine $5 entries; the last two being November 37th. The plaintiff claims that the entire dealings with these agents warrant the inference that they made no claim for interest, and that this is corroborated by the account with its balances, kept on the book. The contract bound plaintiff to pay interest. He has never done so. There is nothing in the case to warrant the inference that these agents had any authority to waive the payment of interest, or that defendant had any knowledge or suspicion that they were attempting to do so. It is admitted that there was no consideration for such waiver. The plaintiff knew that defendant claimed a balance due on the contract in the summer of 1906. The fixtures were not taken by defendant until the spring of 1907. He had, therefore, an opportunity to protect himself by payment. Under the undisputed facts the defendant’s possession was láwful. The judgment is affirmed. Grant, C. J., and Blair, Moore, and McAlvay, JJ., concurred.