Oscar Heyman & Bros., Inc. v. Marshall Field & Co.

• Decision Date: 03 October 1939
• Docket Number: Gen. No. 40583.
• Citation: 22 N.E.2d 776,301 Ill.App. 340
• Parties: OSCAR HEYMAN & BROS., INC., v. MARSHALL FIELD & CO.
• Court: United States Appellate Court of Illinois

301 Ill.App. 340

22 N.E.2d 776

OSCAR HEYMAN & BROS., INC.,

v.MARSHALL FIELD & CO.

Gen. No. 40583.

Appellate Court of Illinois, First District, First Division.

Oct. 3, 1939.

Appeal from Circuit Court, Cook County; Ray D. Henson, Judge.

Action by Oscar Heyman & Brothers, Incorporated against Marshall Field & Company to recover the value of a piece of jewelry the plaintiff had delivered to defendant and which had not been returned or paid for. From a judgment for the plaintiff, the defendant appeals and the plaintiff cross-appeals.

Affirmed. Wilson & McIlvaine, of Chicago, (J. F. Dammann, Sidney K. Jackson, and William R. Dickinson, Jr., all of Chicago, of counsel), for appellant.

Bell, Boyd & Marshall and Seymour M. Lewis, all of Chicago (Earl K. Schiek, of Chicago, of counsel), for appellee.

O'CONNOR, Justice.

Plaintiff brought an action against defendant to recover $8500, the value of a piece of jewelry it had delivered to defendant and which had not been returned or paid for. The case was tried before the court without a jury, there was a finding and judgment in plaintiff's favor for the amount of its claim and defendant appeals.

The record discloses that plaintiff was engaged in the jewelry business in New York City, and from time to time over a period of years had been selling jewelry to defendant which sold such jewelry and other merchandise in its retail store in Chicago. December 8, 1936, Mr. George, an employee of defendant in Chicago, telephoned plaintiff in New York, talking to Nathan Heyman, plaintiff's representative. Plaintiff's version of this conversation is that Mr. George said defendant, Marshall Field & Company, had a customer interested in an exceptionally fine large cat's eye brooch, who would be in its store in the morning to see such brooch, and defendant wished to obtain the brooch from plaintiff; that Heyman said plaintiff had such a brooch in Chicago and he would have it sent over to Mr. George “on memorandum immediately”; that Mr. George said “That would be fine.” Defendant's version of this conversation is that Mr. George told Mr. Heyman that Marshall Field & Co. had a customer for such a brooch, that the customer would be in New York and would call on plaintiff within the next day or two, and for plaintiff to sell the brooch to the customer. Mr. Heyman testified to plaintiff's version of this conversation; but since Mr. George died prior to the trial defendant's version of it could not be directly proved.

The evidence further shows that the next morning, December 9, 1936, Leon Carteaux, a retail jeweler at 55 E. Washington street, Chicago, received a letter from plaintiff enclosing a memorandum requesting Carteaux to go to the Drake Hotel in Chicago, there obtain the brooch and deliver it to Mr. George in Field's store. Carteaux obtained the brooch and between 11:30 and 12 o'clock on the morning of December 9th delivered it to Mr. George as directed together with the memorandum enclosed in the letter. What was said at the meeting between George and Carteaux was excluded because of the death of Mr. George.

The memorandum was on one of plaintiff's printed blanks, addressed in typewriting to Marshall Field & Company and dated December 8. The printed part is as follows: “The goods described and valued as below are sent to you for your examination only at your own place of business. They remain our property to be returned on demand. Until the goods are actually received by us, they are at your risk from all hazards. Possession of the goods described below under the terms of this agreement in no way constitutes you our agent or factor. The receipt and retention by you of the goods described below is your acceptance of the terms and conditions of this agreement which is the entire agreement in respect to such goods and may not be varied by any oral statements, prior course of dealing, or custom in the trade.” Following this printed matter appears in typewriting: “1 Plat. Baguette Diamond Catseye Brooch #17239 $8500.00.”

Margaret Strasser, called by defendant, testified she was employed by defendant and that her duties were to keep a record of the diamond stock; that shortly before noon on December 9th she received the catseye brooch from Mr. George, but on plaintiff's objection she was not permitted to state what Mr. George told her. She further testified that the brooch was wrapped in tissue paper; that she opened the package, looked at the brooch and put it in the safe; that shortly after noon Mr. George came to her, and she took the brooch out of the safe, wrapped it up and took it down to the value room in the sub-basement of Field's store for the purpose of having it sent by express to plaintiff at its New York place of business; that she made out a memorandum--which is in evidence--from defendant to plaintiff, charging plaintiff with the value of the brooch; that at the bottom of this document she wrote in a blank space that the reason for the charge was “Sent to us by mistake.” Upon objection of plaintiff these quoted words were stricken by the court. Miss Strasser testified that what she did in this connection was the usual custom in such cases.

The evidence further shows that about 4:30 o'clock on the afternoon of December 9th one of defendant's employees in the value room noticed a certain package was missing; an exhaustive investigation and search were immediately made and it was discovered that four other packages were missing. No packages were sent out of the room between 1:00 p. m. and the discovery of the loss. Defendant's employees were questioned by house detectives and city policemen. The next day, December 10, it was discovered that the other missing articles were four watches in separate packages and one package from the jewelry section, but it was not until several days later that defendant learned that the brooch was in one of the missing packages. It is conceded that defendant made every effort to locate the brooch but was unsuccessful.

The evidence further shows that the value room in the sub-basement was about 15 feet by 20 feet, that it had an opening about 4 feet wide where packages were received; that it had two doors, one of which went into an adjoining room known as the special delivery room, where six or seven persons worked, and these employees went back and forth between the two rooms at different times as business required; the other door opened into the sub-basement and the locks on these doors were spring locks which opened from the inside, into the delivery department in the sub-basement, where about 200 persons worked. “The brooch was kept in an open container placed along the south wall of the value room.” The merchandise which passed through the value room consisted of jewelry, small radios, shotguns, revolvers and a number of other items.

The complaint was in six counts. At the close of the evidence, on motion of defendant, the court found in favor of defendant as to 4 of the counts; overruled the motion as to the remaining 2 counts, and gave judgment for plaintiff on those 2 counts.

In the view we take of the case it is unnecessary to discuss the allegations of the counts except to say that one of them charged defendant was a bailee of the brooch and that it was guilty of negligence whereby the brooch was lost to plaintiff. The court found against plaintiff on this count, holding that defendant was guilty of no negligence; on a cross appeal plaintiff contends the court was in error as to this count because the evidence shows defendant was guilty of negligence.

[1] Plaintiff contends the printed memorandum delivered to Mr. George by Mr. Carteaux, plaintiff's representative, which we have quoted, and what was done under it constitute a contract; that since defendant “breached its contract in that it did not return the brooch on demand” as it stated in the memorandum it would do, it was liable; and that it was liable for the further reason that the memorandum provided that “until the goods are actually received by us, they are at your risk from all hazards.” There is a great deal of argument by counsel for both sides as to whether this memorandum and what was done under it constituted a contract between the parties. The only evidence as to what was done by Mr. George at the time he was given the brooch and memorandum was, as testified by Mr. Carteaux, that Mr. George looked at the memorandum. Without going into the question in detail we think it clear that the handing of the memorandum and the brooch and what was done at the time did not constitute a contract between the parties. We think the evidence is wholly insufficient to show that defendant agreed to the terms of the memorandum. Maynard v. James et al., 109 Conn. 365, 146 A. 614, 65 A.L.R. 427.

[2] Defendant contends the court erred in permitting the witness, Heyman, to testify as to the long distance telephone conversation he had with Mr. George, since the latter died prior to the trial; that the court erred in striking from the memorandum prepared by Miss Strasser (which she made as a preliminary to returning the brooch to plaintiff in New York) the words “Sent to us by mistake.” And plaintiff contends the court erred in refusing to allow to be read in evidence the deposition of Herman Arnold, an employee of defendant at the time in question, taken by plaintiff before the trial; that the court erred in refusing to admit in evidence a certified copy of the conviction of one of defendant's employees who was working in the value room at the time in question, which conviction took place before he was employed by defendant. In the view we take of the case we think it unnecessary to pass on all these contentions except to say that the words written on the memorandum by Miss Strasser were, we think, clearly admissible as a part of the transaction as tending to show the intention of defendant in what was being done with the brooch, for we are of opinion that in any view of all...