Eilers Music House v. Oriental Co.

Citations

• 69 Wash. 618
• 125 P. 1023
• 1912 Wash. LEXIS 965

Syllabus

<p>Sales—Conditional Sales—Bbeach—Liquidated Damages—Retention op Payments. Under a conditional sales contract of a pianorcbestra, reserving the title until payment of the price and providing that any payment made prior to breach might be retained by the seller as liquidated damages, the seller may retain the installments paid and sue to recover possession on an admitted breach in subsequent payments; and such action being to enforce and not rescind the contract, waiver therein of claims for damages or rent for detention does not affect plaintiffs right to retain payments credited on the contract.</p> <p>Same—Rescission—Recovery of Price. Money paid on a conditional sales contract can only be recovered by rescinding tbe contract and returning tbe property or by proving damages.</p> <p>Same—Breach—Liquidated Damages or Penalty. Upon a conditional sale of a pianorcbestra, stipulating that tbe sums paid may be retained as liquidated damages, if tbe buyer fails to pay for tbe instrument, or removes or attempts to remove or sell it, tbe conditions named are not of sucb a differing degree of importance that tbe measure of damages could not be appropriate for each; and bence tbe stipulation will not be construed as a penalty or security for tbe damages actually suffered.</p> <p>Same. A stipulation in a conditional sales contract of a pianorcbestra that any payments made prior to breach may be retained as liquidated damages, is not to be treated as a penalty because sucb damages increase as tbe performance continues; since tbe vendor’s actual damages increase the longer be is kept out of possession and by tbe increased deterioration of tbe property.</p> <p>Evidence—Parol Evidence to Vary Written Contract. Evidence of verbal warranties alleged to have been made prior to tbe execution of a written contract of sale are inadmissible as contradicting tbe terms of tbe writing.</p> <p>Sales—Action for Price—Counterclaim—Damages. A counterclaim for damages by reason of alleged defe