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LAWNER v. ENGELBACH (01/15/69)

decided: January 15, 1969.

LAWNER
v.
ENGELBACH, APPELLANT



Appeal from judgment of Court of Common Pleas No. 6 of Philadelphia County, March T., 1965, No. 1818, in case of Harriet Lawner v. Charles D. Engelbach.

COUNSEL

Harry R. Kozart, with him Weissman & Kozart, for appellant.

Marvin J. Levin, with him Freedman, Borowsky and Lorry, for appellees.

Bell, C. J., Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones.

Author: Jones

[ 433 Pa. Page 313]

This is an action for the conversion of a diamond ring instituted in the Court of Common Pleas No. 6 of Philadelphia County. The crux of the case is the total disparity in the testimony of Herman Lawner, vendee (Lawner),*fn1 and Charles Engelbach, vendor (Engelbach), as to the terms of the sale involving the diamond ring. The court below chose to believe Lawner and it was within the province of the trial court to judge the credibility of the witnesses and to weigh their testimony. Kalyvas v. Kalyvas, 371 Pa. 371, 376, 89 A.2d 819 (1952); Hindman v. Hindman, 209 Pa. Superior Ct. 157, 224 A.2d 809 (1966). At the appellate level it is not our duty to find the facts but to determine whether there is evidence in the record to justify the trial court's findings of fact. 9 Standard Pennsylvania Practice, ch. 40, § 107, at 430 (1962). We find there is basis in the record for the court's

[ 433 Pa. Page 314]

    findings of fact as to the terms of the sale and we will not overturn the court's decision to give credence to Lawner's testimony.

Since the issues in this case are primarily factual and since we have adopted the findings of fact of the court below, we will quote those findings directly: "The foundation for the events rising here were laid in 1956, when [Lawner], an individual, purchased, for Four Thousand Dollars ($4,000.00), a diamond ring from [Engelbach], a diamond merchant. The ring purchased in 1956, was appraised and insured for Ten Thousand Dollars ($10,000.00) and was in possession of [Lawner] until November, 1964, when she returned to [Engelbach] with her husband to buy a new ring. At [Engelbach's] place, [Lawner] saw a ring she would have. It was offered at Fifteen Thousand Dollars ($15,000.00), but it burned with more than gem like flame, as it was represented by [Engelbach] as being worth Thirty Thousand Dollars ($30,000.00). Indeed [Engelbach], to fortify this attractive proposition, offered to rescind the sale were the ring he offered not appraised at Thirty Thousand Dollars ($30,000.00). In the presence of such bargain, [Lawner] gave her ring and three (3) post-dated checks, which totaled Nine Thousand, Three Hundred and Fifty Dollars ($9,350.00) and instantly repaired to a reputable appraiser, with the new ring. The bubble swiftly burst. The appraiser valued the new ring at only Fifteen Thousand Dollars ($15,000.00). Back went [Lawner] to [Engelbach], with the sallow news, her postdated checks were returned, the sale rescinded, as promised but her old ring was not returned, nor ever has it been. [Engelbach] said he had consigned it out and would return it. Meanwhile, he tendered [Lawner] a check for Five Thousand Dollars ($5,000.00). [Lawner] says the check was a security deposit pending

[ 433 Pa. Page 315]

    return of her old ring. [Engelbach] says it was full payment for a ring bought and sold. This action is aimed at the heart of that controversy. [Lawner] seeks in conversion, the value of her old ring, the fair replacement value of which she asserts to be Twenty Thousand Dollars ($20,000.00) and as [Lawner] asserts fraud, she seeks punitive damages in the sum of Thirty Thousand Dollars ($30,000.00). [Engelbach] saith he bought and paid for the old ring and there the matter should end." (Emphasis added). The court below found in favor of Lawner in the sum of $15,000.00, including the $5,000.00 check already paid by Engelbach.

While we are bound by the trial court's findings of fact, we are not bound by its legal conclusions drawn from those facts. Kemp v. Majestic Amusement Co., 427 Pa. 429, 432, 234 A.2d 846 (1967). The court concluded from the above recited facts that when Lawner returned the ring to Engelbach, the parties agreed on a rescission of the sale. Technically, this is not an accurate characterization of the facts. First, it is difficult to justify the conclusion that Engelbach agreed to rescind the sale since there is little, if any, concrete evidence in the record that Engelbach still had the old ring when the Lawners returned the new ring. It is hardly likely that Engelbach would have agreed to rescind the sale and promise to return the old ring which he no longer had. Second, since this case involves the sale of personal property, the controlling law is Article 2 of the Uniform Commercial Code (Act of April 6, 1953, P. L. 3, §§ 2-101 et seq., as amended, 12A P.S. §§ 2-101 et ...


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