26 Misc. 2d 649 | N.Y. Sup. Ct. | 1960
Involved here is a transaction, common in the jewelry trade, by which the plaintiff delivered to the defendant, a broker, certain diamonds on memorandum. They were either lost or stolen while in the defendant’s possession. The plaintiff seeks to recover the sum of $34,798.50, as the agreed value of the merchandise. In the first cause of action, the plaintiff sues upon a common-law bailment, and, in a second cause of action, the plaintiff sues on the written memorandum.
The plaintiff moves, in pursuance of rule 113 of the Rules of Civil Practice, for summary judgment on the second count. In its moving papers, the plaintiff seems to me to go somewhat beyond the scope of its cause of action as pleaded, and in respect of which the defendant, in his answering affidavit, has interposed denials. But, as I see it, no triable issue is raised as to these matters when we consider that this cause is basically grounded upon a document signed by the defendant, which reads as follows:
MEMORANDUM
JUDSON 6-1360-1 New York 2/18 1968
YERSTANDIG & SONS, INC. M L. Sobel DIAMONDS
20 WEST 47TH STREET NEW YORK 36, N. Y.
The merchandise described herein is delivered to you on MEMORANDUM only, at your risk of loss, or damage from all hazards, whether by theft, robbery, fire or otherwise.
Title to said merchandise is and shall remain in YERSTANDIG & SONS, INC. and is held by the undersigned subject to our order, the delivery thereof being for the purpose of inspection only, and is to be returned to us on demand. It is understood and agreed by the undersigned that nothing contained in this memorandum shall be construed to be, nor has there otherwise been an extension of credit to the undersigned. The undersigned has no right to transfer the said merchandise to any other person, firm or corporation, whether on memorandum or otherwise, without the WRITTEN permission of YERSTANDIG & SONS, INC. A sale of this merchandise can only be effected and title will pass only if,
14 10545
a $ 330
[Signed] L. Sobel
The defendant contends that the memorandum was not the actual agreement between the parties but was a receipt only to evidence the fact that the plaintiff had delivered the merchandise to the defendant. The defendant urges that it was at all times understood that he was acting as the plaintiff’s agent to endeavor to make sales of the diamonds on the plaintiff’s behalf, and that it was agreed that the defendant would not be responsible in case the merchandise were stolen. This, the defendant states, will be proved by way of prior dealings between the parties, the custom in the trade and the contemporaneous oral agreement as to this particular transaction. The plaintiff denies the claimed agreement in any aspect (except as indicated in the writing) and interposes the parol evidence rule as a bar to the introduction of any evidence which would vary or contradict the written terms of the agreement.
The defendant asserts that since the diamonds were not delivered to him for the purpose of “ inspection ” as set forth in the memorandum, the paper obviously did not express the agreement of the parties. While the true nature of this, and perhaps one other aspect of the agreement (to be referred to hereinafter), may be difficult to ascertain from the memorandum itself, it is, in my view, a sufficiently integrated contract in respect of the critical point here at issue. The operative clause is that the diamonds are “ delivered to you [the defendant] on memobahdttm only, at your [the defendant’s] risk of loss, or damage from all hazards, whether by theft, robbery, fire or otherwise * * * and is to be returned to us [the plaintiff] on demand”. In plain words and in simple language, the defendant has specifically agreed to be absolutely liable for any loss of or damage to the diamonds, irrespective of cause — thus making himself an insurer. The undertaking as to this aspect of the contract is clear and unequivocal.
‘ ‘ Deeply imbedded in the judicial decisions of every common-law jurisdiction is the rule that the terms of a written agreement cannot be varied by parol ” (Hutchison v. Ross, 262 N. Y. 381, 398; General Phoenix Corp. v. Cabot, 300 N. Y. 87, 92; Rus
If the memorandum here were, as asserted by the defendant, merely a simple receipt, the parol evidence rule would not apply, f<?r such a writing “ is not intended to be an exclusive memorial, and the facts may be shown irrespective of the terms of the receipt” (9 Wigmore, Evidence [3d ed.], § 2432, pp. 104-105). But, “ [w]here a contract is embodied in the receipt, then, so far as the receipt contains a contract, it cannot be controverted or explained by parol ” (Ryan v. Ward, 48 N. Y. 204, 208; Komp v. Raymond, 175 N. Y. 102, 109-110). That the memorandum here is more than a bare receipt is obvious from mere examination. And that such a memorandum is a contract not to be varied by parol has been held on the highest authority (Green v. Wachs, 254 N. Y. 437, 441; Davidson v. Tuthill, N. Y. L. J., Jan. 14, 1948, p. 163, col. 2, Botein, J.; see, also, Nelkin v. Farber, 196 Misc. 545).
I mentioned earlier that there was an element in this memorandum the true nature of which needed clarification. That has to do with the matter of value, or price of the diamonds delivered. In its written portion, the merchandise was described as
“ 14 10545 a $330.”
There is no dispute that this means that the defendant received 14 uncut stones weighing 105.45 carats and that “a $330.” refers to the amount in dollars per carat. It is this sum, mathematically totaling $34,798.50, which the plaintiff seeks to recover. But there is an issue here an the basis of this submission, for the written memorandum is ambiguous as to whether the price as stated is the agreed-upon value of the diamonds or the sales price if the defendant purchased for himself or the price which the defendant is supposed to endeavor to obtain from Ms customer.
The plaintiff’s motion for summary judgment is granted and an assessment of damages is directed.