Alan Cutler, Inc. v. New England Diamond Corp.

226 So. 2d 701, 1969 Fla. App. LEXIS 5346

• Court: District Court of Appeal of Florida
• Decided: September 16, 1969
• Docket: No. 69-105
• Status: Published

Opinion

PER CURIAM.

New England Diamond Corp. sent certain jewelry to the appellant concern on consignment in November and December of 1965, accompanied by a memorandum which read in part as follows:

“ * * * This merchandise after being received by you, until receipted for by us, is at your own risk against any loss or damage of any kind whatsoever, whether caused by your negligence or not. * * * ”

Thereafter, in April of 1966, the jewelry was stolen as a result of an armed robbery. New England brought suit to recover. The appellant denied liability, contending that the memorandum agreement had not been executed and, therefore, there was no contractual liability on it to respond because of the loss due to the robbery. The facts were without dispute. The trial judge rendered a final summary judgment in favor of the appellee, and we affirm.

The acceptance of the jewelry with the written memorandum without complaint by the consignee rendered it responsible for the items, in accordance with the memorandum agreement which accompanied the delivery of the jewelry. In this connection, see the following: United States Fidelity & Guaranty Co. v. Slifkin, D.C., N.D.Ala.S.D.1961, 200 F.Supp. 563; Nelkin v. Marvin Hime & Co., 1964, 228 Cal.App.2d 744, 39 Cal.Rptr. 701; Allemania Fire Ins. Co. of Pittsburgh v. Keller Diamond Corp., S.Ct.N.Y. 1950, 101 N.Y.S.2d 9.

Therefore, for the reasons above stated, the final summary judgment here under review be and the same is hereby affirmed.

Affirmed.