Martin v. Houck Music Co. , 1906 Ark. LEXIS 324 ( 1906 )

Riddick, J.,

(after stating the facts.) This is an action to recover damages for injury to and conversion of a piano. The facts in short are that plaintiff was the owner of a piano which defendant undertook to repair, and for which defendant was to be paid $135. But there was a misunderstanding as to the manner in which this sum was to be paid. The plaintiff, Mrs. Martin, understood that it was to be paid in monthly installments, and she offered to pay it in that way, and asked that the piano be returned to her on those terms. But the company insisted that the full amount was due, and it exercised the right to hold the piano until the full amount charged for the repairs was paid. While the piano was thus held by it, a heavy storm of sleet came, and, as explained in the statement of facts, the piano was injured.

The plaintiff contends that the defendant not only claimed the right to hold the piano for the payment of the price of the repairs made on it, but that it held it for an unlawful claim for rent of another piano, and also for a charge for storage which plaintiff did not owe; that in this way it was guilty of an unlawful conversion of the piano. Counsel for plaintiff has filed an admirable brief, discussing the law as applied to that state of facts. His argument would be unanswerable if the, facts in the case were as he assumes them to be.

We admit, to quote the language of a decision cited by counsel for appellant, that “a claim to hold the possession of the property and a refusal to deliver it on demand, under and in assertion of a right other than that' given by the lien, would be evidence of a conversion.” Hamilton v. McLaughlin, 145 Mass. 20. But after a careful reading of the transcript in this case we do not find that there was any such claim. It is true that the defendant did make a claim against plaintiff for the rent of another piano, and also notified her that, unless the piano was removed by the first of January, storage would be charged. But the evidence does not show that the company held or claimed the right to hold the piano for such charges. The company, as we see the evidence, was holding it for the price of the repairs, and the evidence convinces us that plaintiff could have obtained her piano at any time by paying the $135 due for repairs. The evidence shows that the company was anxious to return it on those terms. But she declined to make this payment on the ground that her contract with the defendant was for a payment by installments. We do not find from the evidence that there was any such contract, though we are satisfied that plaintiff acted in good faith; for it seems to us that there was a mutual misunderstanding between the parties as to whether the price of the repairs was to be paid in installments or not. Out of that misunderstanding came the refusal to pay by plaintiff, the retention of the piano by defendant, and this lawsuit. Subsequent events show that it would probably have been better for the defendant, in view of this misunderstanding to have yielded a point, and allowed plaintiff to retake her piano and pay for the repairs in installments as she offered to do, but the company was under no legal compulsion to do this. It had the right to hold the piano until the repairs were paid for, and in our opinion it was guilty of no conversion. As plaintiff bases her right to recover on an alleged conversion, we need not discuss the question of whether the injury to the piano was due to the negligence of defendant, though we are of the opinion that no negligence was shown. It results from what we have said that, in our opinion, the plaintiff is not entitled to recover.

The defendant has taken a cross-appeal from the judgment of the chancellor, but we conclude from the statements in the brief of his counsel that the defendant does not insist on that very seriously. According to the statements of counsel for defendant, the decree of the chancellor in this case was in substance, though not in form, a decree by consent — at least so far as defendant is concerned. That being so, defendant has no right to ask us to reverse that decree. If there was error in that decree, it was error invited by defendant. We are therefore of the opinion that the decree of the chancellor, which in effect refused any relief to either party and taxed the costs against the defendant, should be affirmed. The costs of this appeal must be taxed against plaintiff. It is so ordered.