Silberfeld v. Solomon

• Citation: 70 Colo. 413,202 P. 113
• Decision Date: 06 December 1920
• Docket Number: 9379.
• Parties: SILBERFELD v. SOLOMON et al.
• Court: Supreme Court of Colorado

202 P. 113

70 Colo. 413

SILBERFELD v. SOLOMON et al.

No. 9379.

Supreme Court of Colorado

December 6, 1920

Rehearing Denied Dec. 5, 1921.

Error to District Court, City and County of Denver; H. P. Burke Judge.

Action by Arthur Silberfeld against S. Solomon and another. Judgment for defendants, and the plaintiff brings error.

Reversed.

Scott C.J., and Bailey, J., dissenting.

T. J. O'Donnell, Canton O'Donnell, and J W. Graham, all of Denver, for plaintiff in error.

Hindry, Friedman & Brewster, of Denver, for defendants in error.

TELLER J.

The plaintiff in error, a diamond merchant of New York, brought suit against the defendants in error, pawnbrokers in Denver, to recover the value of certain diamonds alleged to have belonged to the plaintiff and to have been converted by the defendants to their own use and benefit. The defendants had judgment, and the case is before us on error.

Plaintiff's claim is that he delivered the diamonds in question to one Lester, a salesman of jewelry 'on memorandum,' that being a term used in the jewelry trade covering a consignment of goods, on a written memorandum, to be sold, the consignee having possession of but not title to the goods; that the diamonds were the property of plaintiff, and were by him delivered to Lester, is not disputed.

Defendants by answer admitted possession of the diamonds, and set up, as a second defense:

'That plaintiff delivered the diamonds to Lester, whose duty it was 'to find purchasers for, sell, and transfer such diamonds, said Lester agreeing to pay plaintiff therefore at certain agreed prices; that said Lester was permitted by said plaintiff to represent himself as the owner of such diamonds; and that said Lester did so represent himself in matters hereinafter mentioned to defendants; that said plaintiff was fully aware that said Lester was in the habit of so representing himself; that said Lester pawned to defendants certain diamonds which he had in his possession, and which he represented to defendants that he owned, to secure moneys loaned to said Lester aggregating $1,200.'

A third defense sets out that there was a New York statute which provided that every factor or agent in possession of goods without documentary evidence of title should be deemed to be the owner thereof.

It the second befense was intended as a plea of estoppel by conduct, it is insufficient, because it does not state that defendants knew or relied upon plaintiff's acquiescence in Lester's representations of ownership.

The plea of the New York statute is ineffective because it does not allege that Lester was without documentary evidence of title.

Even had the second defense contained the necessary allegations, it would not avail the defendants, because there is no evidence that when they received the diamonds in pawn they knew of the practice charged. Indeed, defendant Solomon testified that he had no knowledge on the subject. They did know of the custom in the trade of consigning goods on memorandum, and they are presumed to have known that authority to sell does not give authority to pledge, because such is the law. Morsch v. Lessig, 45 Colo. 168, 100 P. 431.

There is no evidence upon which the jury could have found that the goods were in Lester's possession under any agreement other than that evidence by the memoranda. Much is said in the briefs of the statement which Solomon testified was made by the plaintiff, viz. that he gave the goods to Lester 'to sell as his.' It is...