Spero-Nelson v. Brown
| Decision Date | 06 June 1949 |
| Docket Number | No. 10802.,10802. |
| Citation | 175 F.2d 86 |
| Parties | SPERO-NELSON v. BROWN et al. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Sumner Canary, Cleveland, Ohio (McKeehan, Merrick, Arter & Stewart, Sumner Canary, Cleveland, Ohio, on the brief), for appellant.
Lee C. Hinslea, Cleveland, Ohio (Leckie, McCreary, Schlitz & Hinslea, Lee C. Hinslea, Vincent M. Arnold, Cleveland, Ohio, on the brief), for appellees.
Before HICKS, Chief Judge, and McALLISTER and MILLER, Circuit Judges.
Appellant, Spero-Nelson, brought this action to recover $18,000 as the value of a diamond bracelet sent by it to the appellees on consignment, and which was lost or stolen during its return shipment to the appellant. It appeals from a judgment in its favor in the amount of $2,100, based upon a jury verdict, on the ground that it was entitled to either a judgment as a matter of law in the amount of $18,000, or, in the alternative, to a new trial upon the issue of damages because of the inadequacy of the jury verdict.
Appellant was a wholesale jeweler in New York City. Appellees were partners engaged in the retail jewelry business in Cleveland, Ohio. In October 1945, appellees had a customer for a diamond bracelet and telephoned appellant to send them a diamond bracelet in the price range of from $12,000 to $15,000. Appellant obtained a bracelet from Fabrikant Bros. Inc., a New York diamond merchant, on consignment at a price of $18,000 which it then sent to appellees by Railway Express Agency. There was placed in the sealed package with the bracelet a consignment memorandum reading as follows:
The $21,000 figure represented appellant's cost plus a profit of $3,000. Appellant placed a declared valuation on it with the Railway Express Agency in the amount of $2,100. There was testimony that it was the standing custom with the appellant firm in making such shipments to put a declared value of 10% of the value stated in the consignment memorandum.
Appellees received the bracelet and kept it in their possession from October 24, 1945 until November 2, 1945, during which time they exhibited it to their customer. The bracelet was not purchased by the customer and on November 2, 1945 appellees shipped it back to the appellant by Railway Express Agency, putting upon the shipment a declared value of $500. An increased declared valuation up to $21,000 could have been placed upon the shipment by the payment of ten cents for each additional $100 valuation. The bracelet was never delivered to the appellant. Appellant subsequently paid Fabrikant Bros. Inc. $18,000 for the bracelet and brought this action against appellees for the same amount. The jury returned a verdict for appellant in the sum of $2,100, on which judgment was entered. Appellant moved to set aside the verdict and the judgment entered thereon and for the entry of a judgment in its favor in the sum of $18,000, or, in the alternative, for a new trial solely upon the amount of damages, on the ground that the verdict for $2,100 was inadequate. The District Judge overruled both motions without stating reasons therefor. This appeal followed.
Appellant contends that the consignment memorandum sent with the bracelet became the contract between it and appellees, fixing appellees' obligation as that of absolute insurer, and that upon appellees' failure to return the bracelet to it they became liable as a matter of law for the value stated in the memorandum. It reduced its demand to $18,000, the amount of its actual loss. Appellees deny that the consignment memorandum was ever agreed to by them or became the contract of bailment between the parties. It was undisputed that the memorandum was received by the appellees but was never signed by them. There was evidence that it was held for awhile and then delivered to the insurance agent who was investigating the loss, that appellees had not signed such a memorandum in previous shipments between the parties, and that appellants had acquiesced in such practice. A similar consignment memorandum accompanying the shipment of the bracelet from Fabrikant Bros. Inc. to appellant had been signed by appellant and was the basis for appellant's payment of $18,000 to Fabrikant Bros. Inc. The general rule is that silence on the part of the offeree is not consent as a matter of law in the absence of a duty to speak. Columbia Malting Co. v. Clausen-Flanagan Corp., 2 Cir., 3 F.2d 547, 551; Bowley v. Fuller, 121 Me. 22, 115 A. 466, 24 A.L.R. 964; Cincinnati Equipment Co. v. Big Muddy River Consolidated Coal Co., 158 Ky. 247, 256-257, 164 S.W. 794. The possession and display of the bracelet for a limited period was impliedly agreed upon by the parties irrespective of the memorandum and before its receipt. The memorandum contained terms not applicable to the usual bailment, and by its terms contemplated written acceptance. We are of the opinion that the District Judge was correct in declining to rule as a matter of law that the consignment memorandum became the contract of bailment between the parties, and in submitting to the jury under appropriate instructions the issue of whether there was a meeting of minds and an agreement between the parties as stated in the memorandum. Oscar Heyman & Bros. Inc. v. Marshall Field & Co., 301 Ill.App. 340, 22 N.E.2d 776. The evidence on the question of whether the appellees agreed to the terms of the consignment memorandum under all the circumstances was that from which fair-minded men might draw different inferences, regardless of what inference might be drawn by the Court, and accordingly a jury question was presented. Hutchins v. Akron, Canton & Youngstown R. Co., 6 Cir., 162 F.2d 189, 192; Frank Hemingway, Inc. v. Southport Mills, 5 Cir., 279 F. 237; Universal Products Co. v. Emerson, 6 W.W.Harr. 553, 36 Del. 553, 179 A. 387, 100 A.L.R. 956.
The District Judge also properly submitted to the jury the question of appellees' liability for negligence in making the return shipment with a stated valuation of only $500, holding them to the exercise of such care as an ordinarily prudent person would exercise in such circumstances. In this connection, he charged the jury that if its verdict should be for the appellant it should find for the appellant "in an amount which you should determine from all the evidence to be the fair valuation of the bracelet which was lost, not exceeding, as I said, $18,000."
Appellant contends, however, that since the jury found the appellees liable, the verdict, under the...
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