Cable Piano Co. v. Philip Werlein, Ltd.

6 Teiss. 49, 1908 La. App. LEXIS 107

• Court: Louisiana Court of Appeal
• Decided: November 23, 1908
• Docket: No. 4543
• Status: Published

Opinion

MOORE, J.

The plaintiff company sue to compel the defendant company to pay plaintiff an alleged debt of Adolph "Williams, the liability to pay which is charged to arise from the defendant having taken possession of a part of Williams’ vacant succession with the intent to convert it to its own use and without beig authorized to that effect.

It appears that on the 8th day of November, 1904, plaintiff sold and delivered to one Adolph Williams, a resident of the Parish of St. Martin, in this State, a certain Wellington Piano, Style A, Mahogany Case No. 51,663, for the price and sum of $250. The contract of sale was in writing and stipulated fox payments at stated periods and in certain amóunts and provided that upon default of any payment at the periods stated, the whole of the unpaid balance of the purchase price was to become due and exigible, together with interest thereon, at the rate of 5 per cent, per annum from the day of default, and 10 per centum on the aggregate of principal and interest as attorneys’ fees. Up to the 10th day of May, 1905, Williams had paid on account the sum of thirty dollars, but on that day an installment was due, which he failed to meet, and no further or subsequent payments were made.

Williams died on or about the 6th day of June, 1906, in the Parish of his domicile (St. Martin,) still having the piano in his possession. His succession was never opened, and has remained since his death vacant and unclaimed.

It further appears that the defendant company had also sold_ a piano to Williams on which there was an unpaid balance of the purchase still dire and owing. This piano was known as a ‘ ‘.Werlein, ” and had been sold long before Williams had purchased the Wellington Piano from the plaintiff The claim for the Werlein Piano had been put in the hands of the Wilcox Agency for collection, and that “Agency” in turn sent the claim to a lawyer in St. Martin.

The Werlein Piano, so the defendant company had been advised by Williams, had been badly damaged by a cyclone which swept over the Parish of St. Martin, and then it was that Williams offered to return it to defendant, who declined to accept it, writing to their representative, C. 0. Wilcox, on the 20th of November, 1905: “We will pot under any circumstances take back the instrument.”

On the 13th of June, 1906, after it had knowledge that Williams was dead, and advice that “the piano was in a fairly good condition,” defendant wrote its representative “to take possession of the instrument, and have it shipped to us at as early date as possible.”

Thereupon defendant’s representative, some ten days after Williams’ death, proceeded to the house in which Williams, who \vas a school teacher, taught school, and where he had always kept the piano which he had bought of plaintiff, took possession of the piano and shipped same to defendant. At once it was received the defendants discovered that it was a Wellington Piano, made exclusively by the plaintiff company and protected by a registered trqde mark. Very soon thereafter .the plaintiff learned that its piano was in the possession of defendant, and at once communicated its claim thereon to defendant, fully explaining same, and requested that the piano be returned to plaintiff or that Williams’ debt to it be paid by defendant. All demands were in vain. Defendant, for one canse or another, prolonged negotiations and put off settlement for nearly a year pending which it sold the piano for $15.00, and then offered plaintiff $5.00 in settlement of its demand. This was refused, and suit followed.

The piano which was taken by the defendant constituted a part of the vacant succession of Adolph Williams; the taking was without authority, and that the intention was to convert the piano to the use of the taker was made manifest by defendant’s subsequent acts. It is, hence, responsible for plaintiff’s claim.

“In case any person shall take possession of a vacant succession, or a part thereof, without being duty authorized to that effect, with the intention of converting the same to his own use, he shall be liable to pay all debts of said estate, exclusive of the damages to be claimed by the parties who may have suffered thereby.” C. C. 1100.

November 23, 1908.

The judgment appealed from is affirmed.