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THE
[4USIC TIRADE
VOL. X L V . N o . 2 5 . Published Every Saturday by Edward Lyman Bill at 1 Madison Ave., New York, December 21,1907.
IMPORTANT INSTALMENT CASE.
Heard Before the Appellate Division of the Su-
preme Court—Judgment of the Lower Court
Which Was Against the Appellant O. W.
Wuertz Reversed and a New Trial Ordered
—Some Interesting Details.
A case of much interest to piano dealers sell-
ing on instalments has just been up before the
Supreme Court, Appellate Division, Second Judi-
cial Department, on an appeal by Otto W.
Wuertz from a judgment of the Municipal Court
of the City of New York, Fifth District of the
Borough of Brooklyn, in favor of Irma Braun and
Isidor Braun. The presiding judges were:
Messrs. Hirschberg, Woodward, Jenks, Miller and
Hooker. The decision which follows was writ-
ten by Judge Hooker:
"This action is to foreclose a lien on a piano.
The appeal is by the plaintiff from a judgment
dismissing the complaint upon the merits. The
case was ibefore this court on an appeal from a
judgment dismissing the •complaint at the first
trial (Wuertz v. Braun, 113 App. Div. 459), and
we then held that the plaintiff made out a prima
facie case and should not have been dismissed.
"The defendant, Irma Braun, is the wife of the
defendant, Isidor Braun; she alone was person-
ally served and alone answers. Her husband
deserted her between the time of the purchase
of the piano and the commencement of the
action.
"The facts which were admitted by the defend-
ant entitle the plaintiff to a judgment of the
foreclosures of his lien. Irrespective of the
evidence offered on behalf of the plaintiff,
it appears from the evidence of the defendant
and admissions made by her that she talked with
the plaintiff about the purchase of a piano by
her husband as a present for her son; that the
piano was delivered at her house to her hus-
band, who at that time paid $10 on account of the
purchase price and executed the chattel mortgage
in evidence, and for whose foreclosure this action
was brought; that some payments have been
made on the purchase price, but she is unable
to state the exact status of the account; that
when her husband abandoned her, she went into
possession of the piano, and it is now with her
parents. The record shows indisputably that at
the time of the commencement of the action the
piano was in her possession, and failure to con-
sent to the sale for the purpose of applying the
proceeds in payment of the amount due is evi-
dent from the fact that upon her motion an order
was made in the Municipal Court, soon after the
commencement of the action, vacating a warrant
of seizure which had theretofore ibeen executed.
"The plaintiff sold the piano, the purchase
price was not all paid, he took a chattel mortgage
to secure the balance; there was due at the day
of the trial the sum of $77.90, and the plaintiff
is entitled to the foreclosure of his lien irre-
spective of whether the answering defendant or
her husband executed the chattel mortgage. The
complaint does not demand any personal judg-
ment against the answering defendant, and it is
therefore evident that the only possible defense
that she could urge was that she had not been
in possession. But the piano was seized at the
time the action was commenced while under her
physical control, and her only defense fails.
"The judgment should be reversed and a new
trial ordered, costs to abide the event."
C. Bertram Plante was the lawyer for the
appellant.
THE LOANING OF PIANOS.
The Plan Adopted by the Piano Dealers of
Denver Might Well be Followed by Dealers
Throughout the Country.
The efforts of the piano dealers of Denver,
Col., to abolish the custom of loaning grands
for concerts, etc., as recently announced in the
Review, have already ibegun to show results, and
one of the leading musical organizations of the
city have solved the question by buying a Stein-
way grand for their own use from the Knight-
Campbell Music Co. The dealers will he very
happy to see other societies follow suit, for it
will mean a great saving of expense to them, as
things became so toad that when the various
concerts took place the dealer was expected to
furnish the piano free of charge and pay the
cartage both ways. In addition the piano house
had to carry a liberal advertisement in the pro-
gram, at a high rate, for which cash was
demanded. Many houses only complied with the
requests for instruments to prevent some other
dealer from getting what little advertising
resulted from having their leader used in the con-
cert and now that practically all the dealers have
joined together in an effort to stamp out the
nuisance it appears that success is certain.
DOING AWAY WITH COMMISSION FIENDS.
The various piano houses in Jersey City, N. J.,
are uniting in an effort to do away with the com-
mission fiends who recently have made their
appearance after nearly every sale and put forth
innumerable arguments as to their being entitled
to a "rake-off." Judging from the majority of
those who claim percentages, it would seem as
though half of the population of the city were
engaged in the selling of pianos. As competition
is very strong pianos are being sold on a very
close margin and it has become almost impossible
to pay a commission and clear any profit on the
deal. As individual efforts have proven fruitless
+
,o do away with the evil, the dealers hope to
settle the matter for all time by united action.
SUFFERS LOSS THROUGH SMOKE.
The Plymouth Piano Co., Brockton, Mass., suf-
fered $2,000 damage through smoke during a
fire in the basement of their store recently. The
loss was fully covered by insurance.
AGAINST TRADING STAMP EVILS.
The retail merchants in Lowell, Mass., are
up in arms against the trading stamp evil and
have joined together in order to make their
action more effective. Louis Grunewald, Jr., the
Ring Music Co., and the Columbia Phonograph
Co., are those in the music trade who have
joined in the movement, which it appears will
be successful,
SINGL E
$ ».O?°PER S VEAR ENTS -
BAYLY TO CONTINUE THE BUSINESS
Of J. F. Ellis & Co. as Directed by the Will of
the Late Mrs. Mary A. Ellis.
(Special to The Review.)
Washington, D. C, Dec. 16, 1907.
The will of Mrs. Mary A. Ellis, widow of the
founder and proprietor of the piano and music
house of John F. Ellis & Co., was admitted to
probate last week and Chas. B. Bayly and J. J.
Darlington appointed executors under a bond of
$100,000. The value of the personal property is
estimated at $75,000 and the real estate at $35,000.
A daughter, Miss Mary R. Ellis, is named as sole
heir. The will directs that the business !be con-
tined under the management of Charles B. Bayly,
who is bequeathed all the published music, manu-
scripts and copyrights belonging to the estate and
other employees and friends are to receive
bequests aggregating $5,800 in value. "In settling
the remainder of the estate to the daughter,
various provisions are made for its future dis-
posal at her death.
AN ODD PIANO DEAL.
The western dealer who took cattle in ex-
change for pianos is not in it with John J.
Kelly, a salesman with the Smith & Miller Piano
Co., Cincinnati, O. In order to close a deal for
the sale of a Clough & Warren piano to an old
German woman, Mr. Kelly took three fine cana-
ries and a score of gold fish as first payment,
and caused great amusement when he walked
into the store with the collateral. The woman
made her living by breeding and selling canaries
and goldfish.
WILL REMOVE TO NEW QUARTERS.
McCall & Alnut, who only started in the piano
business in Savannah, Ga., last spring, have had
such success with their various lines, which in-
clude the Hallet & Davis, Krell, Conway and
Royal, that after the first of the year they will
have to move to new quarters to handle their
business. Their new building, which is being
entirely remodeled, is about twice as large as
their old quarters, and is fitted up in a way best
suited to the needs of a piano business.
TALK OF REPEALING BANKRUPTCY LAW.
Business interests in all sections of the coun-
try will be anxious regarding the statement cred-
ited to a well known congressman, that the
present Congress would, at an early date, make
an effort to repeal the present Federal Banruptcy
Law. The present law, while not perfect, has
proven so satisfactory that it "is questioned
whether, in an effort to improve it, Congress
might be lead to pass some far less satisfactory
measure.
The Trafford Co., Mason City, la., have had a
most succesful season in their section selling the
various high grade instruments in their line,
including the Everett, Mehlin, Fischer, Llndeman
& Sons, Cable, Harvard, A. B. Cameron and other
pianos.