#### J. B. Bradford Piano Company, Appellant, vs. Hacker, Respondent.

*January 13*

February *1, 1916.*

*Sales: Refusal to accept: When property passes: Recovery of purchase price: Nominal damages for breach: Appeal: Affirmance of judgment.*

1. Defendant, in company with plaintiff’s agent, selected a piano at the factory in Chicago, but wished certain alterations in the tone and in the color of the case, which the manufacturer agreed to make. The sale price and shipment to defendant in this state were agreed upon, and a written memorandum of sale was made accordingly. The work necessary to put the piano in deliverable condition took from two to three weeks, and in the meantime defendant repudiated the contract. *Held,*that property in the piano had not passed to defendant, under the Uniform Sales Act (sec. 1684Í — 18, and sub. 2, 5, sec. 1684Í — 19, Stats.), at the time of such repudiation, and hence plaintiff could not recover the purchase price.

2. In an action for the purchase price, in such case, there being no claim for recovery of damages and no evidence offered to show damages resulting from the breach of contract, the most liberal rule of practice would not entitle plaintiff to more than nominal damages; and since under sub. (6), sec. 2918, Stats., upon a judgment for nominal damages defendant and not plaintiff would be entitled to costs, a judgment for defendant should be affirmed.

Appeal from a judgment of tbe circuit court for Washington county: MabtiN L. Lueck, Circuit Judge.

*Affirmed.*

This is an action to recover the purchase price of a Conover inner player piano sold by the plaintiff to the defendant.

*336The plaintiff is a Wisconsin corporation engaged in the sale of music and musical instruments with its principal place of business in Milwaukee, Wisconsin. Plaintiff’s business with the defendant was transacted through H. W. Ban-dall, manager of the player piano department. About two years ago Bandall sold the plaintiff a Melville-Clark Apollo player piano. In February, 1914, she returned to the store and expressed a desire to exchange it for a new instrument. A short time after this defendant called again and the price was discussed. Bandall offered to take the Melville-Clark player piano and $250 in exchange for the $1,000 Conover inner player piano. Defendant was satisfied with the price provided she 'liked the new instrument. She felt that the Steck Eolian player piano was her choice, but she consented to go to Chicago with Bandall and see the Conover instruments there, where the assortment offered greater opportunity for choice. Bandall paid the expenses of the trip, and upon reaching Chicago ■ took defendant to the Cable Company’s warerooms and from there to the Cable factory. They met a Mr. Baumann, who was in charge at.the factory, and they tried out several instruments. Defendant finally showed a preference for one and agreed to take it provided the case would be stained-a certain darker color and the tone made more brilliant, which was agreed to by Bandall and the Cable Company. Bandall then escorted defendant to the depot, where he suggested that she sign the following order, to which she assented. The material parts of the order are:

Date of order *J. B. Bradford Piano Co.,*

4/2/14. Milwaukee, Wis.

Salesman. Sold to *Miss B. Hacker*

H. W. R. Hartford, Wis.

Ship to *Miss B. Hacker*

Town and State Hartford, Wis.

Ship when . . .

Terms: Cash delivered Price. Conover Inner Player p. c. c. 167237 $1,000 00

Cr. Melville-Clark Piano R. Mahy. 750 00

(Signed) Beetha Hackee. $250 00

*337This order was duly sent to tbe Cable Company, confirming tbe verbal order as given by Randall while be and *Miss Hacker*were at tbe factory. On April 7, 1914, tbe defendant sent a letter to tbe *Bradford Piano Company*repudiating tbe contract. Tbe *Bradford Company*on May 2, 1914, made a tender of delivery of tbe piano as refinisbed. At tbe time of tbe trial tbe piano was in tbe warerooms of tbe *Bradford Company.*

Mr. Randall testified that be thought tbe work to be done on tbe instrument could be done in one day. Mr. Baumann, tbe person in charge of tbe Cable Company’s factory, testified that tbe process of staining tbe instrument tbe shade desired by tbe defendant took about two or three weeks.

At tbe conclusion of plaintiffs case before a jury tbe defendant moved for a nonsuit, which motion was granted. Judgment was entered dismissing plaintiff’s complaint and that defendant recover her costs and disbursements of tbe action. From such judgment this appeal is taken.

Tbe cause was submitted for tbe appellant on tbe brief of *H. L.*Kellogg, and for tbe respondent on that of *Sawyer & Sawyer.*

SiebecKee, J.

Tbe trial court held that tbe facts and ■circumstances show as matter of law that tbe property in tbe piano was not transferred to *Miss Hacker*at tbe time tbe written order for tbe purchase was given nor prior to tbe time *Miss Hacker*repudiated this contract on April 7, 1914. Tbe plaintiff assails this bolding of tbe trial court upon tbe .ground that, on tbe evidence, it was a question for tbe jury to determine whether or not the parties to tbe contract intended that tbe property in tbe piano was transferred prior to tbe time defendant repudiated tbe sale. Tbe evidence ■shows that defendant and plaintiff’s agent negotiated for tbe ■sale on April 2, 1914, at tbe factory of tbe Cable Company in tbe city of Chicago, where tbe defendant selected tbe piano in question. It appears that she was not satisfied with tbe *338color of tbe case of tbe instrument sbe selected and insisted on baving tbe color altered and made darker. Tbe manufacturer agreed with plaintiff and defendant to alter tbe color so as to comply with tbe understanding of tbe parties, to regulate tbe tone of tbe instrument as defendant desired it, and to. insert tbe player action and test it as is usually done before sending instruments from tbe factory to customers. Tbe sale price and tbe shipment of tbe instrument by railroad to Hartford, Wisconsin, by tbe plaintiff were agreed upon by plaintiff’s agent and defendant as specified in tbe written memorandum of sale, set out in the above statement. Tbe defendant signed this memorandum at tbe depot in Chicago. The-evidence shows that tbe piano was returned to tbe varnishing, department of tbe factory and a color coat of varnish applied to bring tbe color to tbe shade desired by tbe defendant. After this coat bad dried two more coats of regular varnish were put on, which when properly dried completed tbe piano-so that it was ready for shipment. This process took from two to three weeks, when tbe instrument was boxed and shipped. Defendant repudiated tbe contract on tbe fifth day from tbe date of sale. Tbe facts and circumstances show that tbe piano was not in a deliverable condition at any time-up to tbe date of tbe repudiation on April 7, 1914. The-contract also required tbe shipment of tbe instrument from Chicago to Hartford, Wisconsin, which could not be done, and in fact was not attempted to be done, within two weeks- or more after tbe sale: Tbe conduct of tbe parties at tbe factory and in negotiating tbe sale, when, taken in connection with tbe terms of tbe contract and tbe circumstances of the-case, fails to show that it was mutually understood and intended that tbe property in tbe instrument should pass to de^ fendant at this time. It is plain that the defendant bad no-control of nor any dominion over tbe instrument while in the-factory and that tbe Cable Company retained full control and possession to deal with tbe property as its own. Tbe evi*339dence, showing the entire transaction, does not permit of the inference that the parties mutually intended that the property passed to defendant under the agreement of sale of the instrument, as contemplated by the provisions of sec. 1684Í— 18, Stats. 1915. In the light of the provisions of sub. 2, 5, sec. 1684Í — 19, Stats. 1915, it is clear .that the property had not passed to defendant when she repudiated the contract. Sub. 2 provides:

> “Where there is a contract to sell specific goods and the seller is bound to do something to the goods, for the purpose of putting them in a deliverable state, the property does not pass until such thing be done.”

It is obvious that the piano was not in a deliverable state until the coloring of the case had been altered to comply with the conditions of the sale, within the contemplation of this statute, and hence the property had not passed when defendant repudiated the sale. It is also manifest that the transaction is governed by the provisions of sub. 5 of this statute as regards delivery of the instrument. This section provides that:

> “If the contract to sell requires the seller to deliver the goods to the buyer, or at a particular place, or to pay the freight or cost of transportation to the buyer, or to a particular place, the property does not pass until the goods have been delivered to the buyer or reached the place agreed upon.”

The condition as to shipment expressed in the written memorandum of sale required of plaintiff to ship and deliver the instrument at Hartford, Wisconsin. Taking, then, the conditions and requirements of putting the piano in a deliverable state before such delivery as above indicated and delivery thereof by the seller as specified, it is clear under all the facts and circumstances of the case that the property in the instrument had not passed to defendant at the time she repudiated the contract.

Under the circumstances and conditions of the sale defend*340ant’s breach of the contract on April 7, 1914, renders her' liable to the plaintiff for the damages it suffered from such-breach under the provisions of sec. 1684Í — 64, Stats. 1915, and the decisions of this court. It was held in *Badger State L. Co. v. G. W. Jones L. Co.*140 Wis. 78, 121 N. W. 933, that where specific performance cannot be enforced either party may stop performance and subject himself to the payment of compensatory damages. “In such cases it is held that an action cannot be maintained to recover the contract price, but may be maintained to recover damages for the breach of the contract.” Citing cases in this court. The complaint is framed for recovery of the purchase price and no evidence was offered to show damages resulting from the breach of contract. Appellant makes no claim upon the record for recovery of damages. The most liberal rule of practice authorized under the statutes (ch. 219, Laws 1915: sec. *2836b,*Stats. 1915) in the light of the record would entitle-plaintiff to no more than nominal damages, and requires af-firmance of the judgment upon the authority of *Cronemillar v. Duluth-Superior M. Co.*134 Wis. 248, 114 N. W. 432. On appeal a judgment for defendant will be affirmed if nominal damages do not carry costs but subject plaintiff to costs. Under sub. (6), sec. 2918, Stats. 1915, plaintiff is not entitled to costs on recovery of nominal damages, and costs are-allowed to defendant.

*By the Court.*— The judgment appealed from is affirmed.