Kittay v. Cordasco, 83.

• Decision Date: 18 October 1926
• Docket Number: No. 83.,83.
• Citation: 134 A. 667
• Parties: KITTAY v. CORDASCO.
• Court: New Jersey Supreme Court

134 A. 667

KITTAY

v. CORDASCO.

No. 83.

Court of Errors and Appeals of New Jersey.

Oct. 18, 1926.

(Syllabus by the Court.) the case establish beyond jury question that there is no evidence from which the jury might properly find negligence on the part of the bailee, he is entitled to a directed verdict in his favor; otherwise the directed verdict should be refused.

Appeal from Supreme Court.

Action by Edward Kittay against Joseph Cordasco. From a judgment for plaintiff, defendant appeals. Affirmed.

William Greenfield, of Newark, for appellant.

Pitney, Hardin & Skinner, of Newark (Shelton Pitney, of Newark, of counsel), for respondent.

WHITE, J. The appeal is from a judgment in the Supreme Court upon a verdict in favor of the plaintiff, a diamond dealer, for the negligence of the defendant, a jeweler, as bailee of three diamonds delivered to him in his own store by the plaintiff "on memorandum" to enable him to show them to a prospective purchaser, and, if the latter bought, to deliver them to such purchaser and to collect the retail price, paying the bailor the wholesale, or dealer's, price, and retaining the difference between these prices as his own profit, but, if the "prospect" did not purchase, then to return the diamonds to the bailor.

Obviously, and in fact as it is admitted, under these circumstances the bailment was for the mutual benefit of both the bailor and the bailee, and consequently the rule of liability for gross negligence or fraud only which prevails where the bailment is purely gratuitous on the bailee's part (2 Kent Com. 560; Weinstein v. Sheer, 98 N. J. Law, 511, 120 A. 679) has no application. A bailee for hire, or for what in legal contemplation is the same thing, namely, for the mutual benefit of both the bailor and the bailee, is liable to the bailor for ordinary negligence on the bailee's part which causes the loss of the subject of the bailment. Carter v. Allenhurst, 100 N. J. Law, 138, 125 A. 117, 34 A. L. R. 759, 6 Corpus Juris, 1121.

Appellant complains of the refusal of the learned trial judge to grant his motions for nonsuit and for the direction of a verdict in defendant's favor on the ground that there was no evidence of negligence. We think there was such evidence, and that the motions were properly denied.

The testimony, which was practically uncontradicted, tended to show that the diamonds, which were worth $2,111.40, were delivered by the plaintiff to the defendant in the latter's store at 11:45 a. m., and, instead of being deposited by the defendant in his jewelry safe in that store for safekeeping until he should take them at 3:30 in the afternoon to show to a prospective purchaser with whom he had an appointment at that time for that purpose, the defendant (rather over the protest of the plaintiff, who, when he observed it, told him to be careful) wrapped the diamonds in...