Music Trade Review

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THE MUSIC TRADE REVIEW.
AL^EN vs.BAUS.
AN INTERESTING OPINION BY JUDGE
O'GORMAN.
N. Y. SUPERIOR COURT.
Louis H. ALLEN and
CHARLES S. ABBOTT,
v.
Plaintiffs,
AUGUSTUS BAUS and COMPANY,
Defendants.
At General Term, June, 1887.
Before FREIDMAN and O'GORMAN, J. J.
Motion on the part of the plaintiffs for a new trial
on exceptions ordered to be heard in the first in-
stance at General Term.
ARTHUR C. PALMER, for Plaintiffs.
DANIEL C. BRIGGS, for Defendants.
O'GORMAK, J.
The plaintiffs are partners, doing business as ad-
vertising agents in the City of New York,
The defendants are a corporation, engaged in the
manufacture of pianos in that city.
In November, 1885, the plaintiffs entered into a
contract in writing with the defendants to procure
for defendands contracts with publishers of weekly
newspapers in the United States, not to exceed in
number one thousand, for the publication in their
newspapers of copies of defendants' business oard for
a period of six months.
For procuring these contracts plaintiffs were to re-
ceive, in each instance, five dollars from the defen-
dants.
In each Instance the contract was to be made be-
tween the publisher and the plaintiffs, in a specified
form agreed on between plaintiffs and defendants,
and in each instance that contract was to be assign-
ed to defendants by the plaintiffs by endorsement on
the contract.
The contract between the plaintiffs and defendants
also provided that, if requested by "Baus&Co.,"
the defendants, a member of the firm of "Allen
Bros." shall furnish the assignee (the defendant) with
an affidavit stating that he verily believes said con-
tract to be in all respects genuine ; but if such r#-
quest be not made within ten days after delivery of
any such oontrrct, the affidavit shall be held to be
waived, and any such publishers' contract shall, in
either event.be accepted as "primafacie" evidence
that it is in all respects genuine.
The plaintiffs did procure certain contracts with
publishers, and delivered them, duly assigned, to the
defendants, and were paid for the same at the rate
provided for in the contract.
Subsequently, however,—In May 1886—plaintiffs
tendered to the defendants papers purporting to be
four hundred and twenty of such contracts, duly as-
signed to them, with copies of newspapers contain-
ing defendants' advertisement; but the defendants
rofused to accept said papers, or any of them. No
request was made by defendants for any affidavit of
a member of plaintiffs' firm.
The plaintiffs have brought this action against the
defendants for this alleged breach of contract.
At the trial the plaintiffs council offered, as evi-
dence, four hundred and twenty papers, which he
claimed to be four hundred and twenty contracts with
publishers, and four hundred and twenty news-
parers, said to contain the advertisements of defend-
ants' business, as called for by the contracts.
Objection was made by defendants' counsel to the
admission of these papers in evidence without the
usual proof of the due execution thereof as required
by law.
The objection was sustained, and exception taken
on behalf of the plaintiffs.
The learned trial Judge held that the contracts
should be proved to be publishers' contracts.
The question to be considered on this appeal Is,
whether, by the special terms of the agreement be-
tween plaintiffs and defendants in this case—that
"any such publishers' contract shall be accepted as
'prima facie' evidence that It is in all respects genu-
ine"—the law and rules of evidence are in this case
to be superseded by a rule made by the parties and
specially applicable to this case.
Before deciding that question in the affirmative,
this Court should be well satisfied that such was the
actual intention of the parties, as ascertained by a
careful and strict construction of the language and
purpose of the contract itself.
The result of the interpretation of the contract
would be that on presentation to the defendants of
each paper purporting to be a publishers' contract,
with the affidavit of one of the plaintiffs' firm (if re-
quested) that he verily believed the contract to be in
all respects genuine, the defendants would be bound
to accept the contract as "prima facie" genuine, and
pay plaintiffs for each contract five dollars.
The defendants would also be bound, as provided
in the contract between it and the plaintiff, to pro-
vide each publisher with a piano of defendants' make,
of whieh the regular price was $900 cash, for $250
cash.
If that, however, were the actual agreement, the
defendant was, of course, bound by it.
The question here, is, What are the proper con-
struction and interpretation of those words in the
contract: " Any such publishers' contract shall be ac-
cepted as 'prima facie' evidence that it is, in all re-
spects, genuine" ?
The first essential quality of the paper presented
was, clearly, that it should be a publishers' contract;
and unless that fact were admitted or proved, the
paper was not admissible as " prlma facie " evidence
of anything, even as between the parties, and it could
not be admitted as evidence at a trial in a court of
law without due proof according to law that it had
been duly executed by a publisher.
The learned trial Judge so held, and his ruling waa
right.
The laws of evidence in courts of justice are rigid,
and their wisdom and efficacy have been tested and
proved by long use. To allow them to be superseded
or relaxed to meet a speoial case would be to unset-
tle established rules; and therefore the courts will
not permit it to be done by contract, except where
the contract is positive and free from ambiguity and
not against public policy.
In the case at bar, however, the proper construc-
tion of the contract renders all such antagonism un-
necessary.
The contract does not provide that any paper pre-
sented to defendant by plaintiffs shall be of itself
" prima facie" evidence that it is genuine, but only
such paper as shall be a publishers' contract; and that
fact should have been proved in the case at bar, as is
required in every other.case where a paper purport-
ing to be a contract is put in evidence.
Plaintiffs'exceptions should be overruled and judg-
ment absolute ordered for defendants, dismissing
plaintiffs' complaint with costs.
The appeal from the order dismissing the com-
plaint, and directing plaintiffs' exceptions to be heard
in the first instance at the General Term, should be
dismissed, as wholly unauthorized.
COLBY, DUNCAN & CO.S EMPLOYEES ON A
STRIKE.
HE employes of Colby, Duncan & Co., excepting
the machine hands and the foreman, have
struck because the firm refuses to accede to a
demand for an increase of wages. The firm has de-
cided not to employ hereafter any man who refuses
to sign the following agreement:
We, the employees of Colby, Duncan & Co., do
hereby agree that from and after this date all differ-
ences arising between us and our employers shall be
settled in the following manner, viz. : Any grievance
arising from whatsoever cause, in any particular
branch of work at Colby, Duncan & Co.'s manufac-
tory, shall be referred to the workmen of the entire
factory, and shall be decided by a majority vote, by
ballot, at a meeting to be called for that purpose at
the factory of Colby, Duncan, & Co. Such decision
shall be made known to the firm through a commit-
tee of three, who shall be appointed by the chairman
of said meeting.
In case the firm feel unwilling to abide by the de-
cision of a majority of the workmen the committee
and the members of the firm shall appointa disinter-
ested party, and these two so appointed shall ap
point a third disinterested party, and their decision
shall be final. But under no consideration shall we
be controlled or influenced to go out on strike by any
Individuals, organization or association other than
the employes of Colby, Duncan & Co., with whom we
are associated and work for.
T
BOGUS PIANOFORTES.
BILL BEFORE PARLIAMENT.
BILL, backed by the Political Secretary to the
Board of Trade, the Attorney-General, and
the Political Secretary to the Home Office,
and entitled the "Merchandise Marks Act (1862)
Amendment bill," has been iatroduced by the gov-
ernment, and It bids fair during the present session
to beoome law. Although primarily aimed at for-
geries and frauds in the watch and cutlery trades, it
is of a far more general character.
The musical trade has for some time past suffered
from a series of petty false descriptions applied to
pianofortes and organs. Pianos and organs known
to have been made in Germany, where such things
are cheap, have been described as American goods.
Foreign-made instruments have been sold as of Eng-
lish make. And perhaps a more common instance
of a reprehensible system is to describe a cheap Ger-
man piano as being made by a manufacturer who as
a matter of fact is a myth. When the present bill
passes all these things will be misdemeanors. Sec-
tion 7 of the proposed act declares that the act " shall
apply to any false description, statement or other in-
dication of or respecting the mode of manufacture of
a chattel or article, in like manner" as the section
of the act of 1862 would "apply to a false descrip-
tion, statement or other indication of or respecting
the number, quantity, measure or weight of a chat-
tel or article." No proof of guilty knowledge is
requisite. It is only necessary to prove that the
description is false.
It is true that the defendant can offer rebutting
evidence that he obtained the goods bona fide and
had reasonable grounds for believing the statement
true. But even in that case he will have to pay the
oosts. In any other instance, if the defendant can-
not prove his innocence, he will be liable on indict-
ment to a term not exceeding two years' hard labor,
or fine, or imprisonment and fine; or, on summary
conviction before a magistrate, to C20 fine or four
months' imprisonment for the first offense, and to
£50 or six months for every subsequent offense, and
in all cases to forfeit the goods to the Queen.
It is hoped, for the sake of the respectable mem-
bers of the British, German and American trades,
that the bill will pass, and that it will be strictly en-
forced. At present, however, the seventh section, to
which we have alluded, would seem to apply to those
goods which the dealer or other person marks with
his own name as manufacturer. Thus, if Messrs.
Jones, Brown & Co. have no factory, but sell pianos
labelled "Manufactured by Jones, Brown & Co. 1 '
("stenciled" instruments, as they are called in the
United States), it would seem, as the bill is at present
drawn, that the sellers would be liable to punish-
ment. Whether this would be advisable or not the
trade generally must decide, with the saving clause
that if they wish the bill to be amended in this par-
ticular they would do well to lose no time in taking
energetic steps to secure that end.
But for the manufacturers and importers of bogus
goods, of instruments supposed to be made in one
country, whereas they are really manufactured In
another, or bearing utterly false or mythical names,
nobody will have the slightest pity. These people
injure the honest and fair dealing trade, and it is
high time that their proceedings should be stopped.
We will simply add that by Section 12 agents and
other persons in this country who aid and abet such
proceedings abroad are to be punished in place of
their principals, that search warrants and warrants
of arrest may be applied for, and that the act will
apply to all paits of the United Kingdom.—London
and Provincial Music Trades Review.
A
THE BAUS PIANO IN LONDON.
ESSRS. W. BELL & CO. have just added to their
numerous branch establishments for the sale
of their organs some magnificently fitted
warerooms iti King street, Toronto. This enterpris-
ing firm have also been appointed agents for the
western province of Ontario for the Baus piano of
New York, of which Messrs. Bell state: "This is
one of the most celebrated American Instruments,
and is not excelled for durability, fineness of tone and
excellence of finish."— The London and Provincial
Music Trades Review.
M