On receipt of $75, a piano was delivered by C. to N., under a writing reciting a hiring, and promising quarterly payments of $50 each in addition, so long as it should be kept, to return it on demand, not to remove it without C.'s consent, and to keep it insured; also stipulating that on further payment of $350 in equal monthly installments, the piano was to become N.'s. N. sold the piano to a purchaser in good faith. Held, that the latter got title, the agreement not having been recorded.*

A

CTION to recover a piano. The opinion states the case. The plaintiff had judgment below.

Sheppard & Garrett, for appellant.

Sayles & Bassett, for appellee.

BONNER, J. This case was submitted to the court below on the following agreed statement of facts: "It is agreed by and between the parties to this suit, that a jury may be waived, and the case submitted to the court upon the following agreed statement of facts, and that judgment shall be rendered in favor of the party in whose favor the law may be adjudged upon the hearing:

"1. Plaintiff, a merchant in Houston, Harris county, Texas, entered into a contract with Mrs. Anna A. Newhard, now Reid, in regard to a certain piano-forte, which contract is filed and is to be considered a part of this statement, as follows:

"HOUSTON, TEXAS, Sept. 14, 1871. "Mrs. Annie Newhard this day hired and received of E. H. Cushing piano-forte No. 16,149, 7 full octave, round corner, oct. legs, made by Hallett, Davis & Co., for the use of which I promise to pay the said E. H. Cushing seventy-five dollars on receipt of the above piano-forte, and the further sum of fifty dollars for each and every quarter I shall keep the same, and the said piano-forte to be returned to him on demand, and not to be removed without his written consent, and be kept under insurance while this agreement

*See Singer Manuf'g Co. v. Graham (8 Oreg. 17), 34 Am. Rep. 572.

Knittel v. Cushing.

is in force; provided, however, if I should pay the said E. H. Cushing seventy-five dollars on the receipt of the above piano, and the further sum of three hundred and fifty dollars in seven equal payments of fifty dollars cash each month, with interest thereon at the rate of ten per cent, all of which I agree to do, then said pianoforte shall become my property.

ANNA A. NEWHARD.'

"2. Said piano-forte came into the possession of defendant, who lives in Burton, Washington county, Texas, on June 26, 1872, and is now in his possession.

"3. The piano-forte, at the time of defendant's possession, was worth $350.

“4. The rent of said piano-forte is worth the sum of $10 per month.

"5. Mrs. Anna A. Newhard, now Reid, brought the said pianoforte from Houston to Burton and kept the same there for about eight months in her possession with the knowledge of plaintiff.

"6. Mrs. Newhard paid on said contract, on the day of its date, $75; September 15, 1871, she paid $83.25; January 25, 1872, she paid $113.87; July 2, 1872, she paid $48.18.

7. The contract between Mrs. Newhard and plaintiff was not recorded in Harris county, nor in Washington county. Defendant had no actual notice of the plaintiff's claim upon said piano-forte, and was not aware of any facts to put him upon inquiry thereof. Mrs. Newhard enjoyed a good reputation in the community for integrity and veracity.

"8. Defendant, on June 26, 1872, purchased the piano-forte from Mrs. Newhard and paid her $350 in gold for it. She always claimed the piano-forte as her own property, and defendant bought it in good faith, and believed that it was so."

On the trial below, judgment was rendered in favor of plaintiff, E. H. Cushing, that he recover of the defendant H. Knittel the piano, and in the event that the same could not be found, that he recover as its value the sum of $350; he then and there agreeing to accept the sum of $160.32 in full satisfaction, if paid within twenty days.

The terms of the agreement above set out are so inconsistent that it cannot be held to be both a renting and a sale. It might be a matter of doubt whether it should not be held void for inconsistency and uncertainty. It is not a renting, as the first part of the agree

Knittel v. Cushing.

ment recites it to be. If a valid instrument at all, it must be held to be a sale, and that the pretended renting was but a device to secure the remainder of the purchase money due. The price and terms of payment were agreed upon, and the possession delivered to Mrs. Newhard. The remainder of the purchase money was sought to be secured, not by a recorded lien under our statute of registration provided for this purpose, but through the pretended contract of renting. Conceding that as between the original parties, the contract would be binding, yet it would be contrary to the policy of our registration laws to hold that it would be binding also upon the defendant Knittel, who is admitted to be a purchaser in good faith, for value, and without notice.

The case of Green v. Church was one very much like the present in its main features, in which it is said: "The sum of $400 for one month's rent of an instrument (piano) valued by both parties at $550, is preposterous, and when we add to that the stipulation that the renting is to continue for eleven months unless sooner terminated by the appellees, and that the rent contracted to be paid for that time, when added to the $400 paid in hand, makes up the sum agreed on as the price, and that Mrs. Martin had the privilege of becoming the purchaser at any time during the term upon paying the agreed rent, which was to be credited on the purchase price, there can be no room to doubt that the real transaction was intended to be a sale, and that the device of calling it a renting was resorted to in order to secure the payment of the $150 of purchase money not paid in hand, and that at best its effect was to give to the appellees a lien as against Mrs. Martin for the unpaid purchase money. The well-defined policy of the law is to have as few secret liens and claims upon personal property as possible, that the title may be readily and safely transmitted from one to another. This is in the interest of trade as well as opposed to fraud and collusion." 13 Bush, 433.

* * *

The well-known high character of the plaintiff below forbids that there was any fraudulent intention in the transaction under consideration.

The two cases differ in degree in the amount of the first payment rather than in principle. The case in 13 Bush, supra, is sustained by that of Lucas v. Campbell, 88 Ill. 447, and Price v. McCallister, 3 Grant Cases (Penn.), 248.

This seems to be contrary to a line of decisions in Missouri (Sum

Green v. Raymond.

ner v. Cottey, 71 Mo. 121) but we think the rule here adopted the better one on sound principles of justice and public policy. The onerous terms imposed by the contract upon the vendee, Mrs. Newhard, in the nature of a penalty or forfeiture, do not recommend it to the favorable consideration of the courts.

The judgment below is reversed and here rendered in favor of H. Knittel, that he go hence without day and recover of E. H. Cushing all costs.

Reversed and rendered.

GREEN V. RAYMOND.

(58 Tex. 80.)

Exemption-"tools and apparatus”—printer's press, types and cases.

A printing press, types and cases are exempt from forced sale as “tools and apparatus of trade or profession." (See note, p. 603.)

SUM

UIT on bond. The opinion states the case. The defendant had judgment below.

James B. Morris, for appellants.

N. G. Shelley and R. J. Hill, for appellees.

WATTS, J. COM. APP. Appellees claim that there is a fatal and fundamental defect in the asserted cause of action such as precludes a recovery, in any event, by appellants, and vigorously insist that it shall be considered in advance of the questions presented by the appellant.

On the 11th day of March, 1871, Mrs. Lucinda Raymond qualified as the survivor in community of the community estate of herself and her deceased husband, N. C. Raymond, by giving the bond required by statute, and returning an inventory of the property of the estate. This suit is by a creditor of the estate upon that bond. A general demurrer was presented to the petition and overruled by the court.

[Omitting other points.]

VOL. XLIV-76

Green v. Raymond.

N. C. Raymond, at the time of his death and for a long time prior thereto, was engaged in the publication of a newspaper in the town of Lockhart, Caldwell county, following this as his trade, and from which he derived a support for himself and family. He owned the apparatus constituting the printing office, that is, the press, type, etc. He was not a practical printer, that is, not a typesetter, but was the editor, proprietor and owner of the paper and office. Appellees claim that the press, type and other material pertaining to the office were exempt from forced sale, and did not constitute any part of the estate, and it was so held by the court below. Appellants urge this as error for which the judgment ought to be reversed.

In Buckingham v. Billings, 13 Mass. 82; Danforth v. Woodward, 10 Pick. 423; 20 Am. Dec. 531, and Spooner v. Fletcher, 3 Vt. 133; 21 Am. Dec. 579, it was held that a printing press, types and materials commonly used in printing offices, where several persons are employed, are not tools within the meaning of a statute exempting "the tools of any debtor necessary for his trade or occupation" and statutes of like import.

The case of Patten v. Smith, 4 Conn. 450; 10 Am. Dec. 166, arose under a statute exempting "necessary apparel, bedding, tools, arms or implements of his household necessary for upholding his life;" and it was there determined that a printing press, types, cases, etc., were exempt under the terms of the statute, provided the jury should find, as a matter of fact, that they were necessary for upholding the life of the debtor.

In the case of Sallee v. Waters, 17 Ala. 482, it was held under a statute exempting "all implements or tools of trade," that the press and type of a practical printer, which are necessarily used by him and his journeymen in the publication of a weekly newspaper, were exempt under the statute.

The case of Prather v. Bols, 15 La. Ann. 524, cited by counsel as sustaining the same proposition, is not accessible.

Our statute in force at the time of Raymond's death reserved from forced sale, among other things, "all tools and apparatus belonging to any trade or profession." The law then also provided that "the property reserved from forced sale by the Constitution and laws of this State, or its value if there be no such property, does not form any part of the estate of a deceased person, where a constituent of the family survives." Pasch. Dig., vol. 2, art. 5487.