HOOKER
J.
The
plaintiffs were wholesale dealers doing business in Chicago
and defendant a retail dealer in jewelry at Lansing. The
defendant wrote, and plaintiffs received, the following
letter, viz.: "Lansing, Michigan, June 21, 1893. C. H
Knights & Co.-Sirs: I have a customer for a diamond.
I think
he will take about one and one-half carat stone. Send me
some, but good qualities. If I sell him a stone, it will sell
a half dozen more in a short time. He is a man of big
influence. Send them from one and one-fourth up to two
carats. Send two or more at one and one-half carats, in
different quality, if you can spare them. I may have to keep
them for ten days or two weeks. He pretty slow on selection,
but good as _____. Chas. A. Piella." The
plaintiffs forwarded to him seven diamonds, aggregating
$1,033.19 in value, accompanied by the following memorandum:
"Memorandum from C. H. Knights & Co., Wholesale Dealers,
Columbus Memorial Building, Chicago, corner State and
Washington streets. Chicago, June 22nd, 1893. Do not remove
or deface cards or tags on goods. C. H. Knights. W. H.
Gleason. Duplicate. These goods belong to us until paid for.
"Mr. C. A. Piella, Lansing, Mich.:
2324
one dia. 2 1/16 at ................... $ 80 00
2328
one dia. 1 3/4 ........................ 115 00
2328
one dia. 1 5/8 1/16 1/64 ............... 96 00
2223
one dia. 1 5/8 ......................... 82 00
X one
dia. 1 1/2 ........................... 110 00
2330
one dia. 1 1/4 1/16 1/32 ............... 82 00
2321
one dia. 1 1/4 $76.00 (per carat)."
The
testimony of the defendant shows that he received the
diamonds, and that the same were placed in a show case, from
which they were stolen in the course of the next hour.
Defendant having refused to pay for the stones, this action
was brought to recover their value. The court instructed the
jury that the title to the goods was in the plaintiffs, and
that the goods were left with the defendant to be sold for
their mutual benefit, or returned, and that the defendant was
not an insurer of the safety of the goods, and was held to
the exercise of ordinary care only, and that the burden of
showing the want of such care was upon the plaintiffs. It was
contended by the plaintiffs' counsel that the defendant
acknowledged his liability by the following letter, written
soon after the loss: "Lansing, Michigan, June 23rd,
1893. C. H. Knights & Co.-Sirs: Forepaugh's circus is in
town to-day. I just received your package of diamonds, but I
didn't have them long. I got robbed of them after I
received them,-one hour afterwards; my stones,
and the stones I got from you this morning. I notified the
Pinkerton's, in Chicago; the Jeweler's Alliance;
also, H. H. Botts, of New York. I belong to this insurance
company. Will you please send me a duplicate bill? They stole
bill and all, with the book, out of my case. Don't be
alarmed. I shall pay you every cent I am indebted to you,-it
is all the debts I have got in God's world,-even if I
have to sell my home to pay it. Yours, truly, Chas. A.
Piella."
Upon a
motion by plaintiffs' counsel to strike out certain
testimony, the following colloquy between court and counsel
occurred: "Court: Setting aside the second letter for
the purpose of this question, in considering it, do I
understand that it is agreed between counsel that, if a
sufficient degree of care were exercised, the loss would
follow the title to the property? Mr. Day: I think that is
true; no question about it. Mr. Varnum: I have no doubts
about the question, your honor. Court: Upon that question I
have some doubts. I have not any doubt as to where the title
to this property was at the time of the alleged robbery or
loss. *** This is a reservation of title, clearly, under the
circumstances of this case, on the part of C. H. Knights &
Co. Under that situation the goods are said to have been
stolen. I am not quite certain myself as to the duties
imposed upon a consignee in a case of this kind, concerning
the return of the goods; but, on the basis of what was stated
in this case, I should assume that the loss would follow the
title, providing the consignee had exercised such care over
the goods as their character, value, and the circumstances of
the case required,-reasonable and fair care. I feel very
certain as to where the title was. I do not feel quite so
certain as to the consequences. This matter must come to an
end somewhere. I am going to take the opinion of the jury as
to the question of care exercised by Mr. Piella in this
matter. Mr. Varnum: What position does your honor take in
regard to the letter of June 23d? Is that to be submitted to
the jury? Court: My present view about that
matter is that, if Mr. Piella exercised proper care under the
circumstances, there was no...
