Masset v. Baldwin Piano Co.

This case is before us on rehearing. After a careful study of the case, we are convinced that the former opinion of this court is correct in most respects. Although we fail to agree with the interpretation of paragraph 4 of the contract between plaintiff and defendant as was given by the Supreme Court (186 La. 356,172 So. 418), our interpretation cannot change the opinion of this court in regard to the pianos repossessed by defendant without plaintiff's consent or without notice to him, for certainly the contract does not waive plaintiff's right to notice and knowledge that a repossession was going to be made and it is not proved that he agreed at any time to such action by defendant. Avery v. Helwick, La.App., 166 So. 507.

In that case the court's finding is reflected in the syllabus which reads as follows:

"Where payment of salesman's commission for selling a `freezer' was dependent on payment by buyer of installments on chattel mortgage securing price, seller was liable for unpaid commissions where he accepted return of freezer and canceled mortgage on buyer's inability to continue payments without knowledge of salesman."

However, we are convinced that defendant is entitled to more credits than we *Page 426 allowed in our former judgment, viz., $205.40, stock interest on pianos returned by plaintiff as provided by the contract. Mr. Armstrong testified that he and plaintiff figured this amount and it was agreed upon between them. There is no denial by the plaintiff in his testimony.

There is another item for which credit should be allowed, that is, one Winton piano, No. 203,500, delivered by defendant to plaintiff and not returned or accounted for, the value of which was $148.75. The two items total $354.15 and defendant is entitled to this additional credit.

It therefore follows that the former judgment of this court is amended by reducing the amount of the award to plaintiff from $1,543.10 to $1,188.95, and as amended, it is reinstated and made the judgment of this court.