Johnston Jewels, Limited v. Leonard

Citation239 A.2d 500,156 Conn. 75
CourtSupreme Court of Connecticut
Decision Date30 January 1968
PartiesJOHNSTON JEWELS, LTD. v. Jean E. LEONARD et al.

J. Richard Fay, South Norwalk, with whom, on the brief, was Kenneth Garfunkel, South Norwalk, for appellant (plaintiff).

Adrian W. Maher, Bridgeport, with whom were Kevin J. Maher, Bridgeport, and, on the brief, Thomas E. Minogue, Jr., Bridgeport, for appellee (defendant Gladys L. Isacs, executrix).

No appearance for appellee (named defendant).


RYAN, Associate Justice.

This is an action in two counts brought by the plaintiff, a New York corporation dealing in jewelry and having its place of business in New York City. The first count relates to the defendant Mrs. Jean E. Leonard and alleges the sale of a diamond ring to her, the payment by her of $3000 on account, and her failure to pay the balance due in the sum of $3050. The second count is directed against Mrs. Leonard and the defendant Gladys L. Isacs as executrix of the estate of Herman H. Isacs, Jr., late of the city of Bridgeport. The plaintiff alleges that the decedent, Herman H. Isacs, Jr., died on or about January 1, 1964; that on or about December 1, 1963, the decedent, together with Mrs. Leonard, jointly purchased a diamond ring for the sum of $6050; that a few days later Mrs. Leonard endorsed to the order of the plaintiff an insurance company check made payable to her in the sum of $3000; and that there remains a balance of $3050, which both defendants have refused to pay. Mrs. Leonard in her answer admitted the payment of $3000 to the plaintiff and denied the other allegations of the complaint. The defendant executrix answered, denying the purchase of the ring by the decedent. Both defendants filed special defenses alleging that the action is barred by the Statutes of Frauds of New York and Connecticut.

The plaintiff assigns error in the failure of the trial court to find one paragraph of the draft finding, claiming that it was admitted or undisputed, but, since this assignment of error has not been briefed, it must be treated as abandoned. Bartlett v. Flaherty, 155 Conn. 203, 205, 230 A.2d 436; Derby Savings Bank v. Kurkowski, 155 Conn. 60, 63, 230 A.2d 26; Kasowitz v. Mutual Construction Co., 154 Conn. 607, 612, 228 A.2d 149.

The finding recites the following facts: The decedent came alone to the plaintiff's store in New York on or about December 1, 1963. Roy W. Johnston, an employee of the plaintiff, had known the decedent since early in 1962, when he made a substantial purchase. Later, the decedent made other purchases. On December 1, 1963, the decedent told Johnston that the square diamond bracelet he had previously purchased was lost by the person to whom it had been given. Johnston tried to duplicate the bracelet but was unable to do so. The decedent was then shown a ring, which he took 'on approval.' The sale price of this ring was $6050. No charge was made to any account which the decedent may have had with the plaintiff, no written order of the transaction 'on approval' was made at that time, no records were kept by the plaintiff as to the delivery of the ring, and no business records were made out by the plaintiff as of December 1, 1963, or shortly thereafter. The only record which the plaintiff had was an entry made by some employee on January 17, 1964, more than two weeks after the decedent's death. No note or memorandum of the transaction was signed by the decedent, nor did he make any part payment to the plaintiff. Subsequent to the decedent's visit to the store, Mrs. Leonard came in wearing the ring in question and told Johnston that she would like to have a larger diamond. She was shown larger diamonds, indicated her dissatisfaction with those shown to her, and then told Johnston: 'I think I will be happy with this one.' At that time Mrs. Leonard endorsed an insurance company check made payable to her in the sum of $3000 and delivered it to Johnston. Subsequently, Mrs. Leonard sold the ring. At no time did Mrs. Leonard act as the agent of the decedent. All transactions between the parties occurred at the plaintiff's place of business in New York City.

On these facts the court reached the following conclusions: The plaintiff submitted the ring to the decedent 'on approval.' The decedent was at no time a buyer within the purport of § 85 of the New York Personal Property Law, McKinney's Consol.Laws, c. 41. There was no note or memorandum signed by the party to be charged in order to satisfy the New York Statute of Frauds. Mrs. Leonard was not the agent of the decedent at any time, and her act of part payment could not be attributed to the decedent since no relationship of agency existed. There was no part performance on the part of the decedent, and the plaintiff's claim is barred by the Statute of Frauds as set forth in § 85 of the New York Personal Property Law. The court also concluded that no sale had been made to any party.

The plaintiff assigns error in these conclusions of the court. The court's conclusions are to be tested by the finding. Brockett v. Jensen, 154 Conn. 328, 331, 225 A.2d 190. The conclusions which the court reached must stand unless they are legally or logically inconsistent with the facts found or unless they involve the application of some erroneous rule of law material to the case. Craig v. Dunleavy, 154 Conn. 100, 105, 221 A.2d 855; Yale University v. Benneson, 147 Conn. 254, 255, 159 A.2d 169.

The plaintiff's basic claim is that there was a sale on approval to the decedent and an acceptance of the ring by him. The material questions as to whether there was such a sale and, if so, whether the Statute of Frauds barred a recovery by the plaintiff must be determined on the same subordinate facts and will be discussed together.

All of these transactions took place in New York, and the law of that state applies. The Uniform Commercial Code did not become effective in New York until September 27, 1964, and the parties were therefore not governed by its provisions. On the date of these occurrences, § 85 of the New York Personal Property Law was in effect. 1

In view of the court's finding that no note or memorandum was signed by the decedent and that he gave nothing in part payment, the Statute of Frauds applied unless the decedent accepted the ring and actually received it. There can be no question about his receiving the ring since it was given to him on approval. Both acceptance and receipt of goods sold under an oral contract of sale are necessary to avoid a defense of the Statute of Frauds in an action to enforce the contract. Maher v. Randolph, 275 N.Y. 80, 83, 9 N.E.2d 786, 111 A.L.R. 1309. Section 100 of the New York Personal Property Law in effect at the time, entitled 'Rules for ascertaining intention,' provided as follows: 'Unless a different intention appears, the following are rules for ascertaining the intention of the parties as to the time at which the property in the goods is to pass to the buyer. * * * Rule 3. * * * 2. When goods are delivered to the buyer on approval or on trial or on satisfaction or other similar terms, the property therein passes to the buyer-(a) When he signifies his approval or acceptance to the seller or does any other...

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