Cummings v. Lord's Art Galleries, Inc., 5-1296

• Decision Date: 10 June 1957
• Docket Number: No. 5-1296,5-1296
• Citation: 227 Ark. 972,302 S.W.2d 792
• Parties: Fred M. CUMMINGS, Appellant, v. LORD'S ART GALLERIES, Inc., Appellee.
• Court: Arkansas Supreme Court

Page 792

302 S.W.2d 792

227 Ark. 972

Fred M. CUMMINGS, Appellant, v. LORD'S ART GALLERIES, Inc., Appellee.

No. 5-1296.

Supreme Court of Arkansas.

June 10, 1957.

Rehearing Denied July 1, 1957.

B. W. Thomas and Richard W. Hobbs, Hot Springs, for appellant.

R. Julian Glover, Hot Springs, D. D. Panich, Little Rock, for appellee.

HOLT, Justice.

This litigation involves an auction sale of a diamond ring. Appellant, Cummings, a non-resident, while a visitor in Hot Springs, Arkansas [on July 1, 1954] and attending an action of appellee's, made a bid of $900 on a ring which contained a 2.28 carat diamond surrounded by four smaller diamonds 'weighing 10 points'. His bid of $900 was the highest and the auctioneer closed the sale to appellant for this amount. [Federal excise tax and state sales tax when added to the sale price made a total of $1008.] Following the sale, Cummings paid $50 cash and gave his personal check for $158, on which he later stopped payment, and refused to pay the balance. On November 29, 1955 he filed suit against appellee alleging, in effect, that at the time he purchased the ring appellee represented to the plaintiff that the said diamond ring was a part of and came from the estate of the late Fanny Brice; that the Chase National Bank of New York City, at the instance of the executors of the Brice Estate, had appraised the ring at $5,250; that appellee knew that such representations and warranties were fraudulent when made, were made with the intent that appellant should rely thereon and that he purchased the ring in reliance on said representations and warranties. He further alleged that 'upon learning that said warranties and representations were not true, he rescinded the sale and demanded a return' of $50 cash which he had paid on the purchase price. He further alleged that 'the said false and fraudulent representations were made knowingly, were willful and made with malice for the purpose of deceiving and defrauding this plaintiff.'

Appellant prayed 'that the purchase price of the ring One Thousand Eight Dollars ($1,008.00), less the Fifty Dollars ($50.00) now in the hands of the defendant, its agents, servants or employees, return of which has been refused, be deducted from the value of said ring as warranted and that he have judgment against the defendant for the sum of Four Thousand Two Hundred Ninety Two Dollars ($4,292.00), * * *' and that he be awarded also $10,000 as punitive damages. Appellees answered with a general denial. On the day of trial appellee tendered into court the $50 paid by appellant, and at the close of all the testimony asked for an instructed verdict in favor of appellee, which the court refused to give. The jury returned a verdict in appellant's favor for $51 actual damages and $2,000 punitive damages. This appeal followed.

For reversal appellant first contends that: 'The court erred in granting defendant's motion for judgment notwithstanding the verdict.'

The record reflects that on November 17, 1956, appellee filed a motion in which it prayed that the trial court set aside its judgment previously entered on the jury's verdict and either a judgment in appellee's favor notwithstanding the jury's verdict. Thereafter, on December 5, 1956, the trial court granted this motion of appellee. The court's order granting this motion contains this recital: 'The court erred in failing to sustain the motion or motions for directed verdict for the defendants [appellees]. The evidence before the court is clear and convincing that plaintiff [appellant] breached his contract by stopping payment on his check in the sum of $158.00, given as a down payment for the diamond ring mentioned in the complaint. The evidence shows plaintiff, at the time he breached his contract, had no knowledge of the value of the said ring, had no knowledge of its market value of anything else concerning said ring, since the ring had never been in his possession. The contract was executory rather than executed.'

We have concluded that the court was correct in sustaining this motion. The evidence, in addition to that stated above, tends to show that after the ring had been sold to appellant, as above indicated, he left his seat in the auction gallery, went to the rear of the room where he paid $50 in cash to appellee, and gave his personal check for $158 on the purchase price, and agreed to pay the balance within two weeks and receive the ring. The parties were strangers to each other and were dealing at arm's length. Following the sale the diamond ring was placed in an envelope and sealed, in the presence of appellant Cummings. The envelope bore a duplicate tag showing the same number, as was on the envelope, in which the diamond was placed, and there was marked on the duplicate ticket, which was delivered to appellant, the price of the ring, the amount deposited and balance due. The ring was then put in appellee's safe. The next morning appellant returned. He testified: 'So the next day I went back down and told him that I didn't know anyone in Hot Springs; that I knew one of the vice presidents in the First National Bank in Shreveport appraised all the diamonds for the bank and I would like for him to mail it down there to them for appraisal, that I would be there about twenty days longer. As soon as the appraisal came back, if it met the value, or anything like the value he had stated it had, that I would give him a check for the balance due. But he wouldn't do it. He said,...