McNeiley v. Ayres Jewelry Co.

• Decision Date: 14 July 1993
• Docket Number: No. 92-256,92-256
• Citation: 855 P.2d 1242
• Parties: Cheri McNEILEY and Donald Smith, Appellants (Plaintiffs), v. AYRES JEWELRY CO., a Wyoming corporation; and Charles Ayres, individually, Appellees (Defendants).
• Court: Wyoming Supreme Court

Page 1242

855 P.2d 1242

Cheri McNEILEY and Donald Smith, Appellants (Plaintiffs), v. AYRES JEWELRY CO., a Wyoming corporation; and Charles Ayres, individually, Appellees (Defendants).

No. 92-256.

Supreme Court of Wyoming.

July 14, 1993.

James L. Edwards of Stevens, Edwards & Hallock, Gillette, for appellants.

Keith P. Tyler, Casper, for appellee Ayres Jewelry Co.

James R. Bell and Cynthia L. Harnett of Murane & Bostwick, Casper, for appellee Charles Ayres.

Before MACY, C.J., and THOMAS, CARDINE, GOLDEN and TAYLOR, JJ.

MACY, Chief Justice.

Appellants Cheri McNeiley and Donald Smith (the consignors) brought claims of negligence and breach of contract against Appellees Ayres Jewelry Co. (the consignee) and Charles Ayres after Ms. McNeiley's ring had been stolen from the consignee's store. The trial court entered a summary judgment in favor of the consignee and Mr. Ayres.

We reverse and remand.

The consignors present the following issues:

I. Was summary judgment against the appellants proper under Rule 56, W.R.C.P.?

II. Should summary judgment have been granted in favor of the appellants and against [the] appellees pursuant to Rule 56, W.R.C.P.?

The consignee was a family-owned jewelry store whose business included selling jewelry on consignment. Ms. McNeiley owned an oval diamond ring which her brother, Mr. Smith, placed on consignment with the consignee. Some dispute exists over the actual value of the ring. Mr. Ayres' son, the consignee's president and manager, appraised the ring at $31,484. The parties agreed that $30,750 would be the selling price. The consignee claims that Ms. McNeiley subsequently agreed to reduce the selling price from $30,750 to somewhere in the vicinity of $19,000. The consignors insist that they agreed to consider offers for less than the initial selling price but that they did not agree to reduce the marked selling price.

On approximately May 17, 1991, a "foreign-looking" gentleman entered the jewelry store. Mr. Ayres waited on the customer. Mr. Ayres had retired from the jewelry business but was helping out in the store on the day this customer came in because his son was out of town. Mr. Ayres showed the customer several different pieces of jewelry, including the consignors' diamond ring. The customer ultimately made an offer on a watch and a pear-shaped ring which were on consignment. Mr. Ayres went to the back of the store to call the owners of the watch and the pear-shaped ring to ask whether they would accept the customer's offer. Mr. Ayres and a saleswoman stated in their depositions that Mr. Ayres returned the consignors' diamond ring to the display case before he went to the rear of the store. The customer followed Mr. Ayres to the back of the store but, while Mr. Ayres was trying to contact the owners by telephone, he abruptly left, saying that he had to go to the bank to get some cash. Shortly after the customer left the store, the employees and Mr. Ayres discovered that the consignors' diamond ring was missing. No one was sure how the customer managed to steal the ring. Neither the consignee nor the consignors had insurance which covered the ring.

The consignors initiated this lawsuit against the consignee for negligence and breach of contract. They later amended their complaint to include Mr. Ayres. The consignee, the consignors, and Mr. Ayres each moved for a summary judgment. The trial court entered an order of summary judgment in favor of the consignee and Mr. Ayres. The court's decision relied in large part upon the consignment agreement's risk-of-loss provision:

Risk of loss from damage to or destruction of the consigned merchandise from any cause whatsoever from the time of receiving possession of same until the sale and delivery to a customer of the Consignee or until returned to the Consignor shall remain with the Consignor, and Consignor shall make such arrangements for insurance as he shall deem appropriate.

The court's decision letter stated:

Defendants contend that the risk of loss provision in the consignment agreement prevents recovery by Plaintiffs. The provision insulates Defendants from liability for loss "from any cause whatsoever[."] It places the burden upon the Plaintiffs to obtain any insurance they consider appropriate. I do not see how this language can be interpreted any other way except to place the risk of loss from theft upon the Plaintiffs.

Defendant Charles Ayres contends that he is also entitled to summary judgment because he was acting as an agent for Ayres Jewelry and is entitled to rely upon the language in the consignment agreement. To qualify as an agent, it is necessary that the alleged agent have power to alter the legal relations between the principal and third persons, that he is acting primarily for the benefit of another, and that the principal have the right to control him with respect to matters entrusted to him. The undisputed evidence is that Defendant Charles Ayres meets all of these qualifications.

The court concluded that, as an agent, Mr. Ayres was able to rely upon the consignment agreement's risk-of-loss provision.

A trial court's grant of a summary judgment is proper only if we can make a "dual finding that no genuine issue of material fact exists, and that the prevailing party was entitled to judgment as a matter of law." Davidson v. Sherman 848 P.2d 1341, 1343 (Wyo.1993). If any doubt exists as to the meaning of a written instrument, there is a genuine issue of material fact with respect to the parties' intent, and granting a summary judgment is inappropriate. Weaver v. Blue Cross-Blue Shield of Wyoming, 609 P.2d 984 (Wyo.1980); Meuse-Rhine-Ijssel Cattle Breeders of Canada Ltd. v. Y-Tex Corporation, 590 P.2d 1306 (Wyo.1979). A summary judgment is appropriate in a contract case only when no ambiguity exists in the instrument. Metropolitan Mortgage & Securities Co., Inc. v. Belgarde, 816 P.2d 868 (Wyo.1991). An ambiguous contract is...