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Title MUSIC TRADE REVIEW
IMPORTANT PIANO CASE.
New Trial Ordered in Appeal of Case of Wuertz
vs. Braun—Many Novel
Points
Involved
Which Interest Piano Dealers in This State
—The Decision in Full Appears Herewith.
ONE PRICE PRIZE ANNOUNCEMENT.
years ago the Review started the one price agitation by-
S OME
offering a prize for the best article on the one price system.
Among the many legal cases that have been
For months past we have advocated the establishment of the
on the court calendar during the past year, few
price at retail by the manufacturer at which his product shall
have been of more vital interest to the piano
be sold. Resolutions were passed at Washington favoring this
trade than that of Wuertz vs. Braun et al., the
verdict of which was originally awarded by the
plan, and we believe that the more the question is agitated
Municipal Court in New York to the defendant,
the
more adherents it will win, therefore we will offer a cash
and said verdict now being set aside on appeal
by the Supreme Court, Appellate Division, Sec-
prize of $25.00 for the best article upon the subject: "Benefits
ond District, and a new trial ordered. The case
Which
Will Accrue to the Trade by the Manufacturer
involved many novel points, and proved that a
Establishing Retail Prices at Which His Pianos Shall be
contract subscribed with the name of defendant's
husband did not preclude plaintiff from showing
Sold." All contributions should be typewritten, and addressed
that it was the contract of defendant nor if
to the Prize Editor, The Music Trade Review, 1 Madison
the contract was subscribed by her with her hus-
band's name, relieve her from liability thereon.
Avenue, New York.
Another point of interest in this case is the fact
that a dealer can have a marshal or similar of-
ficer seize and hold a piano on which .he instal-
ments have not been fully paid until a suit papers that justifies such vacation in this case. LET US WORK FOR PENNY POSTAGE.
pending for the recovery of the instrument has The theory of the learned counsel for the re-
been decided. This decision interprets the law so spondent is that the papers show none of the ex- Leading Men in the Mercantile World Advo-
that in the future a writ of replevin will not be trinsic facts as are enumerated in subdivision 2
cating a Reduction in Letter Postage to One
necessary in the recovery of an instrument. The of section 74 of the act as the basis for an at-
Cent—The Music Trade
Industry
Should
case was argued before Judges Jenks, Hooker, tachment, and I conclude that such was the rea-
Help the Cause Along.
Rich, Miller and Gaynor. The opinion, which son that moved the Municipal Court justice to
follows, being written by the first named:
vacation in this instance. Section 138 of the act
There is a strong movement now under way
"Jenks, J. This action is to foreclose a lien reads:
by leading men in the mercantile world for a
" 'Warrant in action for—In an action to fore- reduction in the letter postage rate to one cent.
on a pianoforte. Irma Braun and Isador Braun
were named as the defendants, but only the for- close a lien upon a chattel, if the plaintiff is not This is a step that would be heartily welcomed
mer was served and appeared. The court re- in possession of the chattel, a warrant command- and should be supported by the members of the
fused to admit the contract offered by the plain- ing the marshal to seize the chattel, and safely
music trade industry. The friends of the rail-
tiff, and dismissed him at the close of his case. keep it to abide the judgment, may be issued in roads, express companies and mail order houses
The contract is a printed form, with blanks. The like manner as a warrant of attachment may be may try and fight it, but it is sure to come. The
parties named therein are the plaintiff and 'Mrs. issued in an action founded upon a contract, and opposition of the government officials is due en-
Isador Braun, party of the second part.' In the the provisions of law applicable to a warrant of
tirely to loss of revenue. This, however, could
only instance where a name was necessary, that attachment, issued out of the court apply to a be made up if they cut down the exorbitant rates
of Mrs. Isador Braun is inserted, and in other warrant issued as prescribed in this act, and to paid the railroads and express companies for
blanks the insertions are 'she' and 'her.' The the proceedings to procure it, and after it has carrying mail and refuse to increase the rural
contract is subscribed 'Isador Braun.' It is ap- been issued, except as otherwise specified in the free delivery service at the beck and call of poli-
parent that the court dismissed the plaintiff be- judgment.'
ticians, thus playing into the hands of mail
cause he did not establish that the contract was
"I think that the ground for the issue of such order houses who use the rural free delivery
that of the defendant, and that it excluded testi- a warrant is expressed in the section, namely, 'if
service as a convenient directory of people to
mony offered to establish it as not admissible the plaintiff is not in possession of the chattel,' sell their wares thus injuring local trade.
under the pleadings. The fact that the contract and that this is sufficient to justify the issue of
The tost of rural free delivery service has as-
was subscribed 'Isador Braun' did not preclude such warrant. The reference to attachment and
sumed
an enormous sum, and is a big burden to
the plaintiff from showing that it was the con- the incorporation of the provisions of law ap-
the
taxpayers
of the country. For instance,
tract of Irma Braun. Irma Braun was Mrs. plicable thereto is but to provide a definite pro-
what
in
1901
represented
an outlay of only a
Isador Braun, and if she chose to subscribe a cedure, and not to add a substantial provision
contract running to Mrs. Isador Braun with the additional to non-possession as a prerequisite million and three-quarters now calls for an an-
nual expenditure of considerably more than
name Isidor Braun, she cannot avoid it simply
to the issuance of such a warrant. The
upon that circumstance. In Brown v. Butchers' statutory expression is satisfied by such con- twenty times that sum, the cost of the service in
& Drovers' Bank, 6 Hill, 443, 41 Am. Dec. 755, struction, and the essential difference between the fiscal year ended June 30 last being $25,823,-
300. Not only has the aggregate cost of the
Nelson, C. J., says that:
the remedy of attachment and seizure makes
rural free delivery service made enormous
" 'A person may become bound by any mark against the construction insisted upon by the re- strides, but the average cost per route, which in
or designation he thinks proper to adopt, pro- spondent. The right of attachment is a severe 1901 was $406, is now $722; and this route cost,
vided it be used as a substitute for his name, summary power conferred by statute, in dero- due to increased advantages granted to em-
gation of the common law. It is to secure the
and he intend to bind himself.'
ployes, is likely to increase, rather than dimin-
"See, too, Stellwagen v. Merchants' Life Ins. 'debt by preliminary levy upon property to con- ish. On the other hand, the revenue from rural
serve
it
for
eventual
execution.'
Penoyar
v.
Co., 6 Hun. 654. When the plaintiff rested, his
routes averages $135 per annum, so that some-
evidence, either on the record or improperly Kelsey, 150 N. Y., at page 80, 44 N. E., at page thing like 80 per cent, of the cost of maintain-
789,
34
L.
R.
A.
248.
It
makes
an
involuntary
stricken from it, showed or tended to show that
ing the service is paid not by its beneficiaries,
all negotiations preliminary to the contract were dispossession, and is said to violate every princi- but by the public at large.
ple
of
right.
Id.
Hence
it
is,
generally
speak-
with Irma Braun, that she was Mrs. Isidor
It must not be understood that we are opposed
Braun, that the contract was drawn up and ing, based either upon the difficulty of service or
to our friends in the rural sections of the coun-
some
act
that
smacks
of
fraud
or
concealment.
offered to her for execution, that she subscribed
try receiving the best possible service at the
it and delivered it to plaintiff,, that she thereafter On the other hand, in a case like unto that at
hands of the postal authorities, but we do op-
tar,
the
seizure
is
made
of
a
chattel
which,
by
recognized as her contract, affirmed it, and in
pose the wholesale extravagance in placing
part performed it, and that in all things Isidor the contract of the parties, belongs to the plain-
routes where the number of people are few—the
tiff
until
full
payment
therefor,
and
may
be
re-
Braun was an utter stranger. I think that the
cost in connection therewith being out of all
plaintiff made out a prima facie case, and should taken by him upon default therein. Thus the
proportion to service rendered. Sufficient money
plaintiff
by
such
process
simply
impounds
the
rot have been dismissed. The evidence was
could be saved by the postmaster-general to
competent, though oral, to identify this defend- chattel to abide the judgment. While this con-
carry the one cent postage programme into effect
clusion
may
not
lead
to
definite
relief
in
this
ant as the party of the second part of the con-
if economy were practised in mail transporta-
instance,
it
may
be
well
that
it
should
be
stated.
tract. De Witt v. Walton, 9 N. Y., at page 573.
tion and rural free delivery. Again, the in-
The complaint in effect alleges that the woman
"The judgment of the Municipal Court is re- crease in mail matter that would naturally fol-
defendant executed the contract, and the bill versed, and a new trial ordered; costs to abide low the inauguration of a penny postage would
the event. All concur."
of particulars makes a specific charge thereof.
soon make up any temporary deficit.
C. B. Plante, who has had particular success
"The appellant also seeks to review an order
vacating 'on the papers' a warrant of seizure in cases bearing on pianos, was the attorney for
A new music store has been opened in Rica
issued in this action pursuant to section 138 of the appellant.
Hill, Mo., by the R. H. Wheeler Music Co.
the Municipal Court act (Laws 1902, p. 1532, C.
Miss Olga Kuhlon, of Bay City, has purchased
580). I find no authority in the act, and I am
The Exchange Street Music Store, Athol, Miss.,
cited to none that permits such an appeal. the music business of Earl Holmes, Unionville,
has been purchased by E. Wellington Clapp.
On the merits I fail to find any defect in the Mich.