Music Trade Review

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October, 20th 1881.
THE MUSICAL CRITIC AND TRADE REVIEW.
75
conflicting evidence be reconciled. Comment on e received the $200 from Zoebisch & Co., nor does he commission off and we did thereafter purchase
this point is unnecessary, the decision of the court e pretend that the plaintiffs knew of the fact that hem for that much less.
he did receive it until the discovery was made as
speaks for itself and we give it in full.
The results of these suits is that after a full hear-
alleged in the complaint. Upon this part of the case ng in a Court of Law, Mr. Benham has been con-
he inference is fairly to be drawn that the $200 was
OPINION OF THE COURT.
paid by Zoebisch to Benham for an improper pur- victed of fraud to the extent of $1,160 (about $ 1,500
In the City and County of San Francisco, State of pose. The defendant as the employee of the plain- with interest added), instead of $9,000 which we
iffs and acting for them in pure: asing goods from claimed, but taking into consideration the ground*
California.
Zoebisch should have made the most favorable terms upon which he escaped a judgment in the " H a l e "
In the Superior Court, Department No. 7.
possible for the plaintiffs. This I conclude he did ase, we are inclined to think that the moral turpi-
HON. 0. P. EVANS JUDGE.
not do; and as a consideration for not doing his duty tude is the same for either amount, and we believe
o the plaintiffs in the premises he received $200 re- that we have at least established that our suits were
FRIDAY, September 16, 1881. ferred to. I think therefore that the plaintiffs are not " instigated by malice " and that they did have
ntitled to recover on both counts or causes of action
L. S. SHERMAN et al.
foundation in fact."
stated in the complaint; and it is so ordered.
vs.
Very respectfully yours,
The plaintiffs in this case, L. S. Sherman and F.
A. M. BENHAM.
SHERMAN & HYDE.
A.
Hyde,
were
during
the
years
1874
and
1875
and
for
The plaintiffs in this case, L. S. Sherman and tome time thereafter co-partners doing business in
F. A. Hyde, were during the years 1874 and 1875 and he City and County of San Francisco, under the firm
CHICAGO TRADE.
for some time thereafter, co-partners, doing busi- name and style of Sherman & Hyde. Their busi-
ness in the City and County of s^an Francisco, under ness consisted in dealing in pianos and musical in-
CHICAGO, Oct. 13th.
the firm name and style of Sherman & Hyde. struments, sheet music and other musical merchand-
A SPLENDID BUSINESS OUTLOOK.
Their business consisted in dealing in pianos and ise. The defendant, Benham, was in the employ of
musical instruments, sheet music and other musical
plaintiffs from some time in the early part of
N business circles there is great activity. Our
merchandise. The defendant, Benham, was in the the
1874 until the early part of 1878; during which time
Bank clearances have never been as high as
employ of the plaintiffs for sometime in the early as
employee of the plaintiffs he made trips to during the present Fall. Speculative interests
part of 1874 until the early part of 1878; during the such
Eastern States and to Europe for the purpose of cannot account for this alone, nor the vast products
which time as such employee of the plaintiffs he negotiating
purchase of pianos and other mer- of the West that pass through our city eastward.
made trips to the Eastern States and to Europe for chandise for the
the plaintiffs.
There has been an increase of healthy trade.
the purpose of negotiating the purchase of pianos
and other merchandise for the plaintiffs. It is al- It is alleged in the complaint that during the time
Musical merchandise has been classed with the
leged in the complaint and not denied in the answer, the defendant was so in the employ of the plaintiffs, luxuries, and has generally felt the ups and
that during the years 1874 and 1875 the plaintiffs to wit, in the years 1874 and 1875, he negotiated with downs of commercial prosperity, even as a barom-
bought of one R. Von Minden, through their em- one John P. Hale for the plaintiffs for the purchase eter marks the weather changes. Yet as the
ployee, the defendant Benham, a large number of of a large number of pianos, to wit, 548 pianos;
pianos, to wit, ninety-six pianos. It subsequently upon which it is alleged he received commissions of North-West becomes more wealthy, and the farm-
transpired that upon each piano sold by Von Minden ten dollars each from Hale. The defendant in his ing communities are free from the burdens of debt,
to the plaintiffs, the defendant received from Von answer does not deny the receipt of the commissions, a better style of living is indulged in, and there is
but claims that he was the agent of Hale at the same more attention paid to the comforts of the home
Minden a commission of ten dollars,
time that he was in the employ of the plaintiffs and
The first cause of action stated in the complaint is that this fact was known to the plaintiffs, and that life. This slow development has, of late years,
to recover from the defendant the commissions so they consented that he should act or might act as the reached points of culmination, and one may note
received by him from Von Minden, upon the theory agent of Hale at that time, and receive compensa- greater demands for articles of taste, and worth,-
that the plaintiffs were entitled to the exclusive ser- tion as such. There is much conflicting evidence in from the country.
vices of their employee Benham, and that he had the case as to whether the plaintiffs knew that Ben-
I have seen a very marked improvement in the
no right to receive, and that the plaintiffs did not ham during the time that he was In their employ extent of trade in musical goods in this city from
know that he was receiving commissions from Von was receiving or had authority to receive commis- this very cause.
Minden ; and that the amount so received by the de- sions from Hale upon the pianos sold to the plain-
fendant from Von Minden is held in trust for the tiffs by Hale during that period. From the evidence
THE WEBER BRANCH HOUSE.
plaintiffs. It is also stated in the complaint as a of the plaintiff Hyde I have concluded, for a reason
The
Weber
branch house is established at Nos.
separate cause of action that during the time the de- which I shall state, that the plaintiffs cannot recover
fendant waa in the employ of the plaintiffs as above in this action. Because at that time of the purchase 250 and 252 Wabash avenue. They have a very
stated, he bought for the plaintiffs a bill of goods of the pianos referred to by tne plaintiffs from Hale large store, which is well adapted to purposes of
from the firm of Zoebisch & Co., of New York, the plaintiffs did know that Benbam was holding display and business. They will keep besides the
which bill amounted to the sum of $1,200; upon himself out to Hale as his agent. Many of the bills Weber piano, the Wheelock pianos, and the Wil-
which it is alleged that Benham received from Zoe for those pianos were receipted " J . P. Hale, per cox & White organs. Mr. Ferdinand Mayer, late
bisch & Co., a commission of $200, which sum it is Benham." The receipts being signed by Benham salesman of the New York Weber house has ar-
also alleged was secretly received by Benham con- and the money received by him for Hale whilst he, rived in this city, and will be associated with Mr.
trary to his duty in the premises as the employee of Benham, was in the employ of the plaintiffs. This
the plaintiffs, and that the $200 so received is held by being so, it is wholly immaterial whether the plain- Charles Curtiss in conducting the enterprise. As
is the first Eastern manufacturer to establish
the defendant in trust for the plaintiffs.
tiffs knew that Benham was receiving commissions this
a
direct
branch here, some little attention has
or
compensations
from
Hale
or
not.
They
did
know
The theory of the defense made in the action is
that during the time the defendant was in the em- that Benham was holding himself out to Hale as his, been attracted to the movement in business
ploy of the plaintiffs, it was understood and agreed Hale s agent. They knew that Hale thought Ben- circles.
between him and the plaintiffs that he could act a; ham was his agent in the sale of those pianos, and
ROOT & SON'S GOING OUT.
agent of certain Eastern houses; and that in pursu- this being so, they cannot object that Hale paid a
It
is
reported
that the Root & Son's Music
ance of such agreement and understanding he did commission to Benham.
Company will cease to exist here on the first of
act as agent of Von Minden and received for his
services as such agent a commision of ten dollars-
This decision was originally delivered orally January, and that Mr. John Church, of Cincin-
upon each piano sold by Von Minden to the plain- from the Bench, and when Mr. Benham published nati, will continue the business in his own name.
tiffs. The plaintiffs, both of whom were examined his card he evidently supposed that we had no Report also mentions, that he is to have an im-
as witnesses, deny that any such understanding wa means of refuting his statements, but fortunately portant pianoforte agency in connection with the
had, or that they knew or had reason to believe for us, the Judge has since reduced his decision to business.
that the defendant was representing, or had any
S. BBAINAKDS' SONS IN CHICAGO.
authority to receive commissions from Von Minden writing and therein will be found the best answer
during the time he was in their employ. As to what to Mr. Benham's charges of persecution and malice.
The Chicago branch of S. Brainards' Sons seem
In the " Von Minden " and "Zoebisch" cases to be rapidly gaining a strong foothold in this
the real understanding was between the parties, the
evidence is very conflicting.
the Judge decides that Benham was not only guilt- city. Among their recent publications, are a text
The witness produces a letter: which after some ty of fraud in the original transactions, and of false book on "Harmony," by Karl Merz, a new edi-
discussion by counsel was read in evidence. It is a swearing on the trial of the case, but intimates in tion of Lane's " Musical Dictionary," and a col-
follows:
unmistakable language that he tried to get Von lection of Waltzes by Waldteufel.
" MORBISANIA, New York, April 3d, 1880. Minden to falsify also.
A. M. BENHAM. San Francisco,
KEED A SONS.
In the " H a l e " suit the Judge did not discuss
" Dear Sir:—Your despatch aod postal received. If Mr. Slier-
man will have me called to the staud, to swear that I did not pay the matter of conflicting evidence, but decided
A.
Reed
&
Sons
have
assumed the entire control
you auy commission I cannot do so. Cannot swear of false oath.
Have never done it and never shall do it. Bat if you return to upon the point of law alone, that if we allowed Mr, of the Hardman piano for this city. These gen-
me the small amount paid you as commission, which is not much Benham to nominally act as the agent of Hale Av
for you, and would help me much, I can with clear conscience could not recover any commissions he might have tlemen assure me, that they find this a very satis-
factory instrument, and they are quite successful
Btate that you have not enjoyed of my money.
received while such agent, though we were not with it.
" Believe me dear sir to be, yours truly,
" R. VON MINDEN.'
aware of the fact of his taking such commissions
THE BAKER PIANO.
The nature of the telegram sent by Benham to Von in other words if we voluntarily put ourselves in a
Mr. B. F. Baker has lately arrived in this city,
Minden according to Benham's own statement, and position to be defrauded we could not recover dam
the letter received by Benham from Von Minden ages if we were defrauded. We are told that this to establish an agency for the sale of the Baker
forces the conclusion that the plaintiffs did not know is good law but we do not think that it makes the piano. He seems very sanguine of success.
that their employee, Benham, was receiving commis- transaction any the more defensible on moral
Every endeavor that hearty competition can
sions from Von Minden, and that Benham desired to grounds.
suggest will be made this Fall for business, and I
conceal that fact from them. Indeed the letter irom
As to the secrecy of the commissions from Hale think the aggregation of trade will be greater than
Von Minden to Benham would seem to indicate some
C. H. BRITTAN.
thing more. It might be inferred that Benham had the proof on this point was ample, and of the same ever before.
written or telegraphed to Von Minden suggesting character as in the cases of Von Minden and Zoe
what the character of his evidence should be in case bisch, and it is therefore a fair presumption that i
A. great export trade in black walnut is reported
he should be examined as a witness. Upon this I they were secret in two cases they were the sam< as springing up in Eastern Tennessee, which con-
have no comments to make. It is sufficient for me in the other, and above all it is unreasonable to sup tains large tracts of this timber as yet compara-
that I am forced to believe that the defendant pose that at a time when the Music House of Slier tively untouched. Timber lands are being bought
secretly received commissions from Von Minden man & Hyde was in its infancy and even struggling in large tracts by lumber dealers, as yet mostly
whilst in the employ of the plaintiffs, and desired for existence, we could afford to pay to a clerk a from the North, who are putting up steam saw
and endeavored to prevent Von Minden from stating
the facts to the plaintiff Sherman. This necessarily salary and commissions of $700 to $800 per month mills and getting out large quantities of this valu-
Moreover, the evidence in the case shows, and i able wood for the Northern market. This agrees
contradicts the defendant's theory that there was ai
agreement between him and the plaintiffs unde was not denied, that when we found out the fact o: with what we have formerly stated in this paper,
which it was lawful and proper for him to receive Mr. Benham having taken ten dollars on each piano viz., that there were still large tracts of untouched
commissions from Von Minden.
purchased from Hale, we notified Hale that w< black walnut timber existing in this country, only
As to the second cause of the action, the defendan would not pay the ten dollars any longer, and he awaiting the construction of railroads to become
has not attempted to explain why or for what reason thereupon said that he would sell them to us with accessible to the consumer.
I