Gottlieb v. Rinaldo

• Decision Date: 03 March 1906
• Parties: GOTTLIEB v. RINALDO
• Court: Arkansas Supreme Court

93 S.W. 750

78 Ark. 123

GOTTLIEB v. RINALDO

Supreme Court of Arkansas

March 3, 1906

Appeal from Jefferson Circuit Court; Antonio B. Grace, Judge reversed.

Judgment reversed and cause remanded.

White & Altheimer, for appellant.

1. The rings were delivered to defendant with the agreement and understanding that if she was pleased with them she should keep them, and account to plaintiff at the value fixed, and if not pleased, would within a reasonable time return them to plaintiff. This was not a purchase by defendant under contract of "purchase or return." Defendant was only a bailee of the goods, and was not liable for the loss unless she was negligent. Beach on Mod. Law of Cont. § 746; 150 U.S. 312; 100 Mass. 198. See also 21 Am. & Eng. Enc. Law (1 Ed.), 517 and note to § 3. Title remained in plaintiff till defendant expressed her satisfaction with the goods. Tiedeman on Sales, § 213.

2. Exercising the right to return the rings, by delivery of them to the express company, properly consigned, was delivery to the plaintiff. 44 Ark. 556; 50 Ark. 20; 51 Ark. 133.

Taylor & Jones, for appellee.

Defendant by the contract imposed upon herself the absolute duty to return the rings or make good their value, notwithstanding accident or unavoidable delay. 7 Am. Enc. Law, 148 and authorities cited; 68 Am. Dec. 371, and citations; 61 Ill. 343; Bishop on Cont. § 500; 12 Ark. 664; 61 Ark. 312.

OPINION

MCCULLOCH, J.

The plaintiff, David M. Rinaldo, brought this suit against the defendants, B. Gottlieb and the Pacific Express Company, to recover $ 372, the value of two diamond rings. It is alleged in the complaint that the plaintiff is a merchant doing business in the city of Hot Springs, dealing in watches, diamonds, jewelry, etc., that defendant Gottlieb is a merchant engaged in like business in the city of Pine Bluff, and defendant Pacific Express Company is a common carrier; that the plaintiff delivered said rings to defendant Gottlieb "with the agreement and understanding that, if she (defendant) was pleased with same, she should keep them and account to the plaintiff at the above value, and, if not pleased, would, within a reasonable time, return them to plaintiff at said city of Hot Springs." It is further alleged that the rings were never returned, and judgment is prayed in the sum of their aggregate value.

Defendant Pacific Express Company paid to plaintiff the sum of $ 300, and the action, as to that defendant, was dismissed.

The other defendant, Gottlieb, filed her separate answer as follows:

"It is true, as alleged in the complaint, that on or about the 20th day of December, 1902, the plaintiff delivered to her, through the Pacific Express Company, the two diamond rings of the billed value as charged in the complaint, under the agreement that, if the same could be used by her, she would keep the rings and pay the plaintiff the price charged for the same; but, if not, she was to return the same to plaintiff. She charges that she is in the same business at Pine Bluff as the plaintiff is engaged in at Hot Springs, and, having customers who desired to purchase from her diamond rings of the kind charged in the complaint, and, she knowing that the said plaintiff had for sale diamond rings, she ordered the same from the plaintiff under this agreement: that if she was pleased with the same she would keep them and account with the plaintiff at the value fixed in the complaint, and if not pleased would within a reasonable time return them to the plaintiff at the city of Hot Springs, Arkansas; and the same were received by her at or about the time stated in the complaint, through the Pacific Express Company, at a valuation of $ 300. That, as soon as she could find her customers, she exhibited to them the rings, and, the diamonds being of off color, her customers refused to make the purchase, and on the 26th day of December, and within a reasonable time, she safely and securely sealed both the rings in a box, properly addressed to the plaintiff at Hot Springs, Arkansas, and on that day deposited said package containing said rings with the Pacific Express Company at Pine Bluff, consigned and to be delivered to the plaintiff at Hot Springs, Arkansas, fixing the same valuation upon said package as was fixed by the plaintiff when he sent said rings to her, towit: at the sum of $ 300. That the said Pacific Express Company, through which she sent the said rings consigned to the plaintiff, is a common carrier of goods and merchandise between Pine Bluff and Hot Springs, Arkansas, and the most reliable carrier between said cities, and responsible for any loss, and said company afforded the speediest and most accurate mode of transportation of said rings from herself to the plaintiff. That she has done all in her power to return said rings to the plaintiff, but she is informed and so charges that the said package has been lost by the said Express Company, without fault or negligence on her part."

The court sustained a demurrer to the answer, and, the defendant declining to plead further, judgment against her in the sum of $ 72 was rendered in favor of the plaintiff.

It is argued in support of ...