Danerzac v. Rudolph Wurlitzer & Bro. , 10 Ky. Op. 833 ( 1880 )

Opinion by

Judge Pryor :

The writing evidencing the agreement between the appellee and Mrs. Highbee shows a renting and not a sale of the piano. The latter had the right to purchase but no sale was consummated, and the quarterly installments to be paid is expressly stated to have been for the mere use of the instrument, and no such exorbitant price paid as manifested any other intention.

In the- case of Green v. Martin the price of the piano was $500, and one month’s rent $400 and that sum actually paid. That it was a sale was manifest from the writing itself, although the parties termed it a renting, while in the case before us no such conclusion can be drawn from the contract. It was a renting with the privilege of purchasing at a fixed price, and no title passed to Mrs. Highbee except the mere use and possession. That the appellant did not authorize the order or a delivery of the property cannot now affect the rights of the parties. The plaintiffs could have instituted an action for the property itself without an order of delivery, and having obtained a judgment establishing their title it must now be enforced.

M. L. Roberts, for appellant. Benton & Benton, John L. Fwber, for appellees.

Judgment affirmed.