Knights v. Piella

• Decision Date: 01 December 1896
• Citation: 69 N.W. 92,111 Mich. 9
• Court: Michigan Supreme Court
• Parties: KNIGHTS ET AL. v. PIELLA.

69 N.W. 92

111 Mich. 9

KNIGHTS ET AL. v. PIELLA.

Supreme Court of Michigan

December 1, 1896

Error to circuit court, Ingham county; Rollin H. Person, Judge.

Assumpsit by Charles H. Knights and another against Charles A. Piella to recover the value of certain personal property. There was a judgment for defendant, and plaintiffs bring error. Affirmed.

William A. Fraser (Varnum & Anderson, of counsel) for appellants.

Jay P Lee, for appellee.

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 &amp 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 liability upon his part, and the letter would not create...