F. O. Evans Piano Co. v. Tully

Ethridge, J., delivered the opinion of the court. Appellant, a piano dealer of Chicago, Ill., placed a piano with Tully, at Laurel, Miss., under a contract signed by Tully, which is substantially as follows: “I accept your offer to try one of your Evans Artist Model pianos. Without any obligation on my part to purchase, you may ship the piano ordered below. After testing the instrument for thirty days, if I decide to keep it, I will pay for it as stated below, and will sign your selling contract which is a part hereof. If I decide not to keep it, I will return the piano to the freight depot, subject to your order.” Then follows a description of the piano and the terms of sale, in which it was agreed to pay for the piano in monthly installments. The piano was shipped to Tully on this order. On December 31, Tully wrote that the music rolls had been received, but that the piano had not arrived, although he had phoned all the freight offices. On January 8, 1913, Tully wrote to the piano company that the piano had arrived that day in bad condition, there being some marks on the keys, and the player out of commission; that it seemed to have been roughly handled in transit. He also returned the freight bills and requested check to cover same, also requesting the piano company to have its agent call and lopk over the piano. On January 13th the piano company wrote Tully, acknowledging receipt of his letter of the 8th, and inclosing check for the freight bills, but returned the freight bills and asked that Tully [272] have the agent mark on the freight hills that the piano was received in bad condition, so that damages could be collected from the carrier, and directed Tully to have the piano returned, if it could not be satisfactorily fixed, and another would be sent. It was also suggested that he get a piano tuner to look over the piano and see if it could be put in proper condition, and to send the bill to the piano company for payment. To this letter the appellee did not reply. On February 28th the piano company again wrote Tully, asking him to have the piano fixed, and to have the freight bills marked by the agent so they could collect damages from the company. There was no reply to this letter, and on March 11th the piano company again wrote Tully along the same lines. No reply was made to this letter, and on March 19th the piano company wrote another letter along the same lines. On March 27th the company wrote another letter, to which no reply was received, and again on April 4th, 10th, 18th, and May 6th. May 10th, Mrs. Tully, wife of appellee, wrote the piano company, stating that they had been away from home for some time, and that the piano was in good hands while they were away, stating, also, that when the piano was received the player mechanism had dropped about one and a half inches, and was resting on the keys or hammers, and that they had a tuner fix the same, who only had to straighten the bolts that supported the player, and which had been bent, for which there was no charge; that the piano needed tuning, but was otherwise all right, and stating that every on who saw the piano thought it-was a beautiful instrument. On May 20th appellant replied to this letter and requested a signature to the contract and a remittance, but no answer was received to this letter. On June 29th appellant again wrote Tully, and again on August 12th. On August 14th Mrs. Tully wrote in reply to the letter of the 12th that she did not think the piano was what they wanted. On August 18th appellant replied to this letter, calling attention to its numerous letters in which appellee had been urged to either return the piano or sign the contract, and to have the freight bill marked by the agent, and [273] stating that they could not take back the piáno under the circumstances. Appellee testifies, and also Evans of the piano company. Appellee contended in his testimony that the piano was not in good condition, and was not up to representations, etc. At the conclusion of the evidence, plaintiff requested a peremptory instruction, which was refused by the court. Appellant also requested an instruction that, the defendant was under obligation to return the piano within a reasonable time after the thirty-day trial period, to some common carrier or railroad for reshipment, and if the jury believed the defendant did not, within a reasonable time, return the piano, their verdict must be for the plaintiff, which was also refused. We think that, under the contract, the appellee, defendant below, was under the duty to either accept the piano or return it to the depot of a common carrier at the end of a thirty-day trial period, and as the proof shows there was no effort whatever to return the piano, and that the-defendant below did not respond to the numerous letters of the plaintiff between January 13th and May 8th, he must be treated in law as having accepted the piano. The peremptory instruction for the appellant should therefore have been given. The judgment of the court below is accordingly reversed, and judgment will be entered here for the appellant. Reversed, and judgment here.