Appeal, No. 322, Oct. T., 1959, from order of Municipal Court of Philadelphia County, Feb. T., 1957, No. 236, in case of Milton Neff et al. v. Orville C. Morrision. Order affirmed.
Francis E. Shields, with him Frederick H. Spotts, and Pepper, Bodine, Frick, Scheetz & Hamilton, for appellant.
Maxwell L. Davis, with him Herman S. Davis, and Davis and Davis, for appellees.
Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, and Watkins, JJ. (hirt, J., absent).
[ 191 Pa. Super. Page 37]
This is an appeal from an order of the Municipal Court of Philadelphia which granted the plaintiff appellees' motion for a new trial. Milton Neff and Louis Neff, trading as Milton Neff, the appellees, filed a complaint in assumpsit against Orville C. Morrison, the appellant, to recover $1695 alleged to be due them because of the delivery of a diamond ring to Alvin C. Burton, his agent. After trial, the jury returned a verdict for the defendant. The court below granted plaintiffs' motion for a new trial.
The opinion of President Judge BONNELLY of the court below reviews the testimony as follows:
"Milton Neff testified that the defendant had called him on the telephone and asked him to submit some jewelry on approval as the defendant wished to give his wife an anniversary present. He told the defendant that he had a ring and a bracelet and the defendant told him that he would send a man down to receive them. The plaintiff, Milton Neff, was in the jewelry business on his own account for 35 years and did business at his present location for 30 years. He had done business with the defendant for about ten years and there were some twenty or thirty transactions, wherein the defendant received merchandise on
[ 191 Pa. Super. Page 38]
memorandum and would either accept the goods or return them. Burton had received goods from the plaintiffs for the defendant some eight or ten times.
"Milton Neff placed the bracelet and the ring on the counter and put them in separate boxes. Burton signed the memorandum in duplicate and retained one copy. Several days later Neff called the defendant and asked him how he liked the ring. The defendant said 'what ring.' He told Neff that he had insurance and would look around for the ring. Later he told Neff that he could not find the ring and did not have insurance. However, prior to the notification that there was no insurance, the defendant sent Neff a letter which reads as follows: 'Dear Milton: Inasmuch as the matter of the missing piece of jewelry is being handled by our attorneys and our insurance company, we think it would be wise if you in turn addressed all your inquiries to me through them.'
"Marvin Gities testified for plaintiffs. He said that he worked for Milton Neff for over eleven years; that he was in the store when Burton came in for the merchandise and he saw Neff lay the ring and bracelet on the counter and put them into boxes; that he saw Burton sign the memorandum which Neff put ...