Smith v. Clews

• Decision Date: 19 April 1887
• Citation: 105 N.Y. 283
• Court: New York Court of Appeals Court of Appeals
• Parties: ALFRED H. SMITH et al., Respondents, v. HENRY CLEWS, Impleaded, etc., Appellant.

105 N.Y. 283

11 N.E. 632

SMITH and others

v.CLEWS.¹

Court of Appeals of New York.

April 19, 1887.

Appeal from general term supreme court, First department.

Albert A. Abbott, for appellant.

Chas. H. Woodbury, for respondents.

PECKHAM, J.

This is an action under the Code to obtain the delivery of personal property alleged to belong to plaintiffs, and to be wrongfully withheld by defendant.The plaintiffs had a verdict, which was affirmed at general term, and the defendant has appealed here.The plaintiffs claimed to be the owners of what they called a pair of diamond ear-knobs, of the value of $1,400, which came into the possession of defendant, as shown by the evidence, in the following manner: Elijah Miers was a dealer in diamonds in New York.His business was to procure diamonds from the larger dealers, and sell them to his customers.Before the thirteenth of January, 1879, he had procured from an authorized agent of the plaintiffs a pair of diamond ear-rings, which on that day he had sold to the defendant for $300, and had received the check of defendant, payable to his order, in payment therefor.Before the twenty-third day of January, 1879, Miers had procured another pair of ear-rings from plaintiffs' said agent for $450, receiving in payment the first pair of earrings, and the check of defendant for the balance of $150.Miers had paid to plaintiffs' agent the price of these diamonds after the sale to defendant.The defendant had purchased them in good faith from Miers, assuming him to be the owner.He intended the first pair as a present for his wife, but, when shown to her, she preferred a more expensive pair, and hence the second purchase.These also proved unacceptable, and it was some time after their purchase by defendant before the diamonds in question were presented to him for purchase, he having in the mean time kept the second pair, and, upon the purchase of the diamonds in question of the same man, Miers, he gave back the second pair, and paid $650 in addition, thus making up $1,100, the purchase price of these last diamonds.There is no question of the bona fides of this series of purchases by the defendant.

The evidence is uncontradicted as to the manner in which Miers obtained the last diamonds from the plaintiffs.They had delivered them to Plumb, the diamond broker who had delivered the other diamonds to Miers.One of the plaintiffs was asked how it happened that he delivered these diamonds to Plumb, and he testified that he could not say whether it was at Miers' request or not, but that Miers had called on him before he delivered them to Plumb, and had said to him that he had a customer for a pair of diamond ear-knobs; and, although the plaintiff could not say that he told Miers that he would send him the diamonds through Plumb, yet he says he stated to Plumb that he would do so, and he did do so, and he authorized Plumb to deliver the diamonds to Miers, and that that is the way Miers got them.The witness also said he knew Miers had the diamonds in his possession immediately; that they were taken from the plaintiffs' office and delivered to Miers by Plumb.They were delivered to Plumb on the twelfth of April, and by him to Miers on that day.When Plumb delivered them to Miers, he took from him a receipt in this form:

NEW YORK, April 12, 1879.

‘Received from Alfred H. Smith & Co., by their representative, B. W. Plumb, a pair of single-stem diamond ear-rings, 10 & 1-8 carats, of the value of fourteen hundred...