Syriani v. Gebhart

• Decision Date: 14 April 1950
• Docket Number: 123.
• Parties: SYRIANI et al. v. GEBHART.
• Court: Maryland Court of Appeals

72 A.2d 766

195 Md. 69

SYRIANI et al. v. GEBHART.

No. 123.

Court of Appeals of Maryland.

April 14, 1950

Edward A. Greenstein and Henry M. Decker, Jr., baltimore (F. Duncan Cornell, Baltimore, on the brief), for appellants.

Kenneth C Proctor, Baltimore, (Robert H. Archer, Jr., James B Maginnis, and France, Rouzer, Lentz & Harris, Baltimore, on the brief), for appellee.

Before MARBURY, C J., and COLLINS, GRASON, HENDERSON and MARKELL, JJ.

MARKELL, Judge.

This is an appeal by plaintiffs in a replevin case from a judgment on verdict for defendant for $3,350.

For many years plaintiffs and their predecessors have been New York importers and dealers in Persian rugs. Since 1942 they have sent rugs on consignment, for sale, to Brand Inc. or its predecessors, Boardwalk auctioneers and dealers in rugs and other merchandise at Atlantic City, retaining title till the rugs were sold. Before November, 1947 defendant had been going to Brand's place of business 'watching the auctions and buying some merchandise at private sale for a year or more', and was on familiar personal terms with Brand. In November, 1947 defendant bought a rug for $3,350, which was shipped to him at his residence in Baltimore County and paid for on November 28, 1947. The receipted bill contains, among others, the following statements, 'If for any reason the above rug is not desired, it may be returned and full purchase price will be refunded within thirty (30) days from above date. H.A.B.' 'We are selling agents. Settlements with consignors are made 24 hours after a sale. This sale is complete and no refund made.' Defendant says, 'Mr. Brand would sell a rug and if it was a question of an outsize rug, Mr. Brand would tell the party that, if the rug did not fit the room, it could be returned and he would refund the purchase money. That was his agreement with me when I purchased this rug; and, when we put it on our living-room, we found that it was too large and we returned it.' Defendant received from Brand a refund check, dated January 2, 1948, for the price of the rug, $3,350. The check was deposited on January 6, 1948 and was ruturned, marked 'not sufficient funds.' For reasons not shown the returned check was not received by defendant till about January 21, 1948. Referring to this rug, defendant says, 'He sent it to me with another that he thought might please me. I told him that I would not cover the second rug, and he asked me to give him $1,000.00. I sent both back and got a refund of the $1,000.00. That first rug was purchased at auction, but the second rug was obtained at private sale.' Elsewhere in defendant's testimony there is some confusion as to which rug was purchased at auction and which at 'private sale', but the fact is not material. Defendant gave Brand a deposit of $1,000.00 'and the rug came the morning after I bought the first one. * * * The second rug did not please me and the first one didn't fit.' The bill for the second rug was dated November 29, 1947, was for $2,350.00, viz., $3,350.00 less deposit $1,000.00, and contained a similar statement as to return and refund of 'full deposit.' After defendant received these rugs he kept them 'various times', 'probably a month'. He received his $1,000.00 deposit back; 'I deposited that check and it went through; and right after that I received a check for $3350 which I deposited.'

After the $3,350 check had been deposited but before it was returned to defendant, Brand on January 13, 1948 talked with defendant by telephone, shipped him three rugs on approval and wrote him. 'Pursuant to our telephone conversation this morning, I have located and shipped to you by express today, to Owings Mills, Md., three magnificent carpets which have never been used', naming prices of $3,350, $2,850 and $2,750 respectively, $8,950 in all, for them; 'I wish you would phone me when you get back and Jane [Brand's wife] and I will be very happy to come down and see you all * * *.' No payment or deposit was made for any of the three rugs and no bill sent. These rugs had been consigned by plaintiffs to Brand. There is no evidence who was the owner of the first $3,350 rug, in refund for which the bad check had been given.

After receipt of the three rugs by defendant, neither before nor after the check was returned and Brand became bankrupt did defendant either accept or reject them--or pay or offer to pay for them, with or without deduction of the $3,350 owing him by Brand on the bad check.

'Q. Did you at any time either reject or accept either or all of the three rugs involved in this last shipment? A. No, sir,--I did not accept them or reject them. I had opened the three rugs at different intervals and put down the two described as large rugs on the floor. After the check came back and he went into bankruptcy, it stayed on the floor and nothing was done until Mr. Syriani came over to the farm with a Deputy Sheriff. * * *

'Q. You never took any action in respect to these three rugs? A. No, sir,--I never made up my mind.

'Q. Did you at any time since that notify him that you had accepted one of them, or had rejected all three of them? A. Whom could I notify when I don't know to whom the rugs belong,--I don't know whether they belong to Mr. Brand or not.'

Defendant testified that when he received these rugs 'there were no marks on them to indicate that they had belonged to anyone one but Brand, Inc. I never had any idea in my mind that they were not Brand's.' However, he had previously testified, 'Q. Were there any marks on these rugs to indicate they were not Brand's rugs? A. Nothing but what he told any other purchaser,--Brand said the rugs did not belong to him. * * *', and he later testified, 'Q. Did you ever hear him state that the commission was the only interest he had in this merchandise? A. I could not say that I did or did not, but I know it is true and he was interested in the commissions and I know that some of the merchandise was sold at auction and some at private sales'. In the face of this testimony of defendant it would be difficult indeed to find, in his testimony or elsewhere, any escape from the conclusion that defendant had reasonable grounds to believe that the three rugs did not belong to Brand and could not be sold or transferred in payment of Brand's bad check. Miller v. Lea, 35 Md. 396, 405-407, 6 Am.Dec. 417; Warner v. Martin, 11 How. 209, 228-229, 13 L.Ed. 667.

Defendant argues that (a) the first two rugs were delivered to him 'on sale or return', the property passing on delivery, Code, Art. 83, sec. 37, Rule 3(1); Spickler v. Marsh, 36 Md. 222, 227-228; Sturm v. Boker, 150 U.S. 312, 328-330, 14 S.Ct. 99, 37 L.Ed. 1093, and therefore, (b) by an established course of dealing, the other three rugs were delivered on the same terms and the property passed to defendant. As to the $3,350 rug paid for in full and returned, defendant's premise would seem to be correct, and we may assume, without deciding, that it is also correct as to the second rug, on which a deposit of $1,000 was paid. But the conclusion does not follow from the premise. There is no similarity between the delivery of the first two rugs and the delivery of the other three, no ambiguity about the last shipment to be explained by a previous course of dealing. Where there is a contract to sell specific goods, the property in them is transferred to the buyer at such time as the parties to the contract intend it to be transferred. Art 83, sec. 36(1). Unless a different intention appears, when goods are delivered on approval the property passes to the buyer when he signifies his approval or acceptance of the seller, or does any other act adopting the transaction. Art. 83, sec. 37, Rule 3(2)(a). As to the three rugs there was never any contract to sell at all. They were delivered on approval only, no contract was signed, no money paid, no bill rendered, and defendant never signified his approval or acceptance or otherwise adopted the transaction.

The declaration alleges taking and detention of the three rugs, 'the goods and chattels of' plaintiffs. Defendant pleaded (1) non cepit, (2) property in defendant, (3) the common traverse, Poe on Pleading, § 645, and (4) set-off. The plea of set-off alleges purchase from Brand of the $3,350 rug, return of the rug, receipt, deposit and return of Brand's check, shipment meantime of the three rugs 'on approval', failure of Brand to make good its check, and that 'defendant has retained title and possession of the three rugs * * * pending return of * * * defendant's $3350 which has never been paid.' The plea does not allege any connection of plaintiffs with the $3,350 rug or that defendant believed or had reason to believe that Brand was the owner of the three rugs or mention plaintiffs at all. A demurrer to the plea of set-off was overruled. A prayer of plaintiff for a directed verdict was refused, and after verdict...