Streiff Jewelry Co. v. United Parcel Service

Decision Date30 September 1987
Docket NumberNo. 86-251-CIV-EPS.,86-251-CIV-EPS.
Citation670 F. Supp. 341
PartiesSTREIFF JEWELRY CO., INC., a Florida corporation, Plaintiff, v. UNITED PARCEL SERVICE, INC., an Ohio corporation, Defendant.
CourtU.S. District Court — Southern District of Florida

Sheila Wolfson, Greenberg, Travrig, Askew, Hoffman, Lipoff, Rosen & Quentel, Miami, Fla., for plaintiff.

Lloyd R. Schwed, Fowler White, Burnett, Hurley, Banick & Strickroot, Miami, Fla., for defendant.

MEMORANDUM OPINION AND ORDER DENYING MOTIONS FOR SUMMARY JUDGMENT

SPELLMAN, District Judge.

This CAUSE comes before the Court on Cross-Motions for Summary Judgment. Plaintiff's Complaint asserted four causes of action, in both contract and tort, against Defendant: Count I — Breach of Contract, Count II — Negligence, Count III — Gross Negligence and Count IV — Breach of Fiduciary Duty. Defendant moved for Summary Judgment on Count I; Plaintiff opposed Defendant's Motion and filed its own Motion for Summary Judgment on the remaining tort claims. Because this Court is of the opinion that the contract at issue has been breached but otherwise has not been ratified, and also because the Court is of the opinion that Plaintiff, on the facts of this case, cannot maintain any action in tort, it DENIES both Motions for Summary Judgment and invites the Defendant to file a Motion for Summary Judgment on Counts II, III and IV of Plaintiff's Complaint, and invites Plaintiff to file a Motion for Summary Judgment on Count I of its Complaint, whereupon the Court will enter Final Summary Judgment on Count I in Plaintiff's favor in accordance with this opinion.

FACTS

This is an action for breach of contract. Plaintiff is a jewelry company and entered into a shipping contract with Defendant to have certain jewelry shipped to its consignee in Albuquerque, New Mexico. Plaintiff has been doing business with Defendant for about 10 years, although rarely ships merchandise on a "cash-only" basis, as was the case here under the express terms of the shipping contract at issue. Upon delivery of the goods in New Mexico, Defendant accepted what appeared to be a valid cashier's check from the consignee in lieu of the cash only requirement under the contract. UPS delivered the check to Mr. Block, Plaintiff's president. Mr. Block accepted the check, which upon subsequent deposit turned out to be counterfeit. This suit followed.

BREACH OF CONTRACT

Defendant's Motion argues that Streiff's, consignor, unconditional acceptance from the carrier UPS, of payment not in conformity with the shipping contract constitutes a ratification of the latter's act and waives any future claims against the carrier for breach of contract upon subsequent dishonor of the check. Defendant's Motion at 3. Defendants assert that Mr. Block's conduct in accepting the cashier's check and attempting its deposit constitutes such a ratification.

This Court disagrees. "Before one may infer that a principal ratified the unauthorized act of his agent, the evidence must demonstrate that the principal was fully informed and that he approved of the act." United Parcel Service v. Buchwald Jewelers, 476 So.2d 772, 773 (Fla.Dist.Ct.App. 1985). Such is not the case here. Mr. Block's deposition testimony negates any inference of an intention to ratify the conduct of UPS by showing that he was not fully informed of the consequences of his act of attempting to deposit the cashier's check, and therefore did not knowingly ratify or otherwise approve of UPS's conduct. See Block deposition at 8-9, 11-12, 15-17, 25, 28. This testimony establishes that Mr. Block was not fully familiar with the type of C.O.D. shipment at issue in this case and, specifically, that by depositing the counterfeit check he would lose any future contractual rights against UPS.

The Court is further of the opinion that the contract was breached. The shipping contract required UPS to collect "cash only," which they did not do. Despite UPS's arguments to the contrary, this Court is simply of the opinion that a cashier's check is not the equivalent of "cash only," and that the tendering by UPS to the consignor of a counterfeit cashier's check in lieu of cash only, as required by the express terms of the shipping contract, gives rise to a cause of action for breach of contract by the consignor against the shipper. Buchwald Jewelers, 476 So.2d 772. Accordingly, Plaintiff is invited to file a Motion for Summary Judgment on Count I.

TORT CLAIMS: Negligence, Gross Negligence and Breach of Fiduciary Duty

Two recently decided cases have persuaded this Court that Plaintiff cannot maintain a cause of action in tort on the facts of this case. The first case is East River S.S. Corp. v. Transamerica Delaval, 476 U.S. 858, 106 S.Ct. 2295, 90 L.Ed.2d 865 (1986), which is significantly relied upon by the Florida Supreme Court in Florida Power and Light Co. v. Westinghouse Elec. Corp., 510 So.2d 899 (Fla.1987). Broadly speaking, both cases stand for the proposition that contract principles are more appropriate than tort principles for resolving economic loss without an accompanying physical injury or property damage. Westinghouse Elec. Corp., 510...

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9 cases
  • Public Service Ent. Group v. Philadelphia Elec., Civ. A. No. 88-3214
    • United States
    • U.S. District Court — District of New Jersey
    • 24 Agosto 1989
    ...Id.; see also, Public Service Co. of N.H. v. Westinghouse Elec., 685 F.Supp. 1281, 1287 (D.N.H.1988);8 Streiff Jewelry Co. v. United Parcel Serv., 670 F.Supp. 341 (S.D. Fla.1987) withdrawn per stipulation 679 F.Supp. 7 (S.D.Fla.1988) (No tort remedy available for a plaintiff alleging econom......
  • National Diamond Syndicate, Inc. v. United Parcel Service, Inc.
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • 7 Marzo 1990
    ...a cashier's check has always been deemed the equivalent of cash.") (citations omitted). But see Streiff Jewelry Co. v. United Parcel Service, Inc., 670 F.Supp. 341, 343 (S.D.Fla.1987) ("[A] cashier's check is not the equivalent of 'cash only' [in a c.o.d. delivery contract]...."), opinion w......
  • Computel, Inc. v. Emery Air Freight Corp.
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • 18 Diciembre 1990
    ...by the bank. In finding that this does not result in ratification the Court relies on its decision in Streiff Jewelry Co. v. United Parcel Service, 670 F.Supp. 341 (S.D.Fla.1987). Under very similar circumstances, this Court ruled that before a ratification can be inferred, the principal mu......
  • Sherman v. Johnson & Towers Baltimore, Inc., WN-89-3436.
    • United States
    • U.S. District Court — District of Maryland
    • 10 Septiembre 1990
    ...F.Supp. 287 (W.D.Pa.1988); Richard O'Brien Cos. v. Challenge Cook Bros., 672 F.Supp. 466 (D.Colo.1987); Strieff Jewelry Co. v. United Parcel Service, 670 F.Supp. 341 (S.D.Fla.1987); Zidell, Inc. v. Cargo, Etc. of Barge ZPC 404, 661 F.Supp. 960 (W.D.Wash.1987); Gulf Boat Marine Services v. G......
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