Green v. Wachs

• Decision Date: 18 November 1930
• Citation: 254 N.Y. 437
• Court: New York Court of Appeals Court of Appeals
• Parties: HENRY GREEN, Appellant, v. LOUIS L. WACHS et al., Respondents, Impleaded with Another.

254 N.Y. 437

173 N.E. 575

GREEN

v.WACHS et al.

Court of Appeals of New York.

Nov. 18, 1930.

Action by Henry Green against Louis L. Wachs and another.From a judgment of the Appellate Division, First Department(229 App. Div. 147, 241 N. Y. S. 341), reversing as a matter of law a judgment of the Trial Term entered on a verdict directed by the court in favor of the plaintiff, the jury being waived, the plaintiff appeals.The appellant gave stipulation for judgment absolute.

Judgment of the Appellate Division reversed, and judgment of Trial Term affirmed.

Appeal from Supreme Court, Appellate Division, First Department.

Walter Underhill, Maurice Rubinger, and Robert Jacobs, all of New York City, for appellant.

Harold R. Medina, William Solomon, and William Gilbert, all of New York City, for respondents.

CRANE, J.

Henry Green, of 527 Fifth avenue, New York City, had been in the jewelry trade for over twenty-nine years, selling precious stones.He was the owner of an emerald cut diamond weighing 13.40 carats.For some years he had been doing business with Felix B. Vollman, in the same line of business, and had on many occasions sold to or through him jewelry.In the fall of 1925, Vollman took from Green the emerald cut diamond, worth, it is said, about $18,000 to show to his customers and to make a sale, pursuant to arrangements which were embodied in the following writing:

‘Memorandum

‘No. 16968

‘Henry Green

‘527 Fifth Avenue

‘New York

‘Telephone Murray Hill 9795

‘Importer of Precious Stones

‘New York, Sept. 3, 1925

‘To Felix B. Vollman

‘City.

‘These goods are sent for your inspection and remain the property of Henry Green and are to be returned on demand.Sale takes effect only from date of approval of your selection, and a bill of sale rendered.

‘1 Em. Cut Dia. in ring 13.40 $12,500-Stone

‘Net

‘[Signed]Felix B. Vollman’

On the 3d of October Green demanded the return of this gem, which resulted in the following letter:

‘Oct. 3rd, 1925

‘Henry Green, 527 Fifth Avenue, New York, N. Y.

My dear Mr. Green: In response to your letter of today's date, we wish to advise you that we have gotten in touch with the party who had your goods on memorandum from us and we herewith enclose his reply to us.

‘Please be patient as we assure you we are endeavoring to the utmost to have the goods returned to you on Monday, October the fifth.

‘Yours very truly,

‘Felix B. Vollman & Co.

‘[Signed]Felix B. Vollman.’

Vollman had passed the diamond on to another dealer, named Harry Cohn, who wrote to him that, on account of the demand made by Henry Green for the emerald cut diamond, he would return it not later than October 7th.‘This,’he wrote, ‘no doubt will satisfy your request for the return of this merchandise and should in turn satisfy Mr. Green.’

It appears that Cohn had passed the diamond on to another dealer named Harry C. Arnow, who in turn had sold it to Louis L. Wachs and Morris H. Mann, the respondents.The money paid for the stone was returned neither to Vollman nor to Green.The latter thereupon brought this action against Wachs and Mann to recover the stone or its value.

The issue at the trial was the authority of Vollman to sell the stone.The defendants offered to supplement or explain the written memorandum of September 3d, above quoted, by showing a custom in the trade that brokers or dealers, such as Vollman, under similar circumstances, had authority and were expected to sell jewelry consigned to them, and remit after receiving the price from their customers.The trial justice excluded such evidence, and also struck out all the evidence bearing upon the previous dealings of Vollman and Green in so far as it attempted to show the nature of their previous transactions.The court ruled that the memorandum of September 3d was not ambiguous, was clear in its meaning, and could not be varied by parol evidence of trade custom or by the previous acts of the parties.

The judgment directed for the plaintiff was reversed by the Appellate Division on the authority of Smith v. Clews, 105 N. Y. 283, 11 N. E. 632,59 Am. Rep. 502, two of the justices dissenting.

The jeweler, Henry Green, did not part with title merely because he parted with possession.Vollman, in taking the diamond, held it subject to the agreement which he had made with Green.Anybody taking it from Vollman, even an innocent purchaser for value, such as these defendants, had no better right to the stone than did Vollman.Smith v. Clews, 114 N. Y. 190, 21 N. E. 160, 4 L. R. A. 392, 11 Am. St. Rep. 627, on the second appeal.The right to this diamond, therefore, depends upon Vollman's right to sell, and this in turn depends upon the meaning of the memorandum which he signed when he took the stone.If there be any doubt about the meaning of the words or phrases used in this paper, the trial justice was in error in ruling out the proposed evidence.If the meaning is clear, then his rulings were correct.Whatever may have been the previous dealings between Green and Vollman, Green had the right to part with this diamond on such terms as he desired, and, if his intention was made clear, it could not be modified or changed by anything he had done before.

We are of the opinion that the memorandum agreement of September 3d is clear on its face.The diamond is sent to Vollman for his inspection, and is to remain the property of Henry Green, to be returned on demand.Vollman, of course, took the diamond to sell.He and Green were in that business.The memorandum, however, states that a sale, that is, a sale by Green to Vollman, passing title, is to take effect only from the date of the approval (Green's approval) of his (Vollman's) selection, and a bill of sale rendered.Title never passed to Vollman, according to this agreement, as a sale to him never took effect.There is no evidence of an approval of his selection, or attempted sale; and no bill of sale was ever rendered.The correspondence in the case indicates that more than one piece of jewelry or one gem was taken at a time, and such, no doubt, is the practice with these jewelry brokers.The memorandum, therefore, as will be noted, is in the plural, and reads: ‘These goods are sent for your inspection,’ etc.This explains more fully the meaning of the words: ‘Sale takes effect only from date of approval...