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June 30, 1969


The opinion of the court was delivered by: KRAFT

 This action arises from a dispute concerning the ownership of a collection of antique jewelry, comprised of 210 to 213 pieces, having a gross value of approximately $73,500. Specifically, plaintiff seeks rescission of two agreements entered into by the parties, and a determination that a third agreement between plaintiff and the former owner of the collection, is valid and vests title to the entire collection in the plaintiff, or, alternatively, that under one of the aforesaid agreements, the plaintiff's previous selection of pieces, which represents a portion of the entire collection, be rescinded and that an appraiser be appointed by the Court to assign values to each piece selected by plaintiff until plaintiff shall have selected pieces of an aggregate of $15,000.

 Presently before us is plaintiff's motion for a preliminary injunction to restrain the defendant from selling or otherwise disposing of the remaining pieces of the collection.

 Defendant has now moved to dismiss plaintiff's complaint because (1) plaintiff has already received and accepted certain pieces having a value of $9,330 and acknowledged receipt thereof by a signed receipt; that plaintiff, therefore, is only entitled to sue for pieces having a value of $5,670, which is the balance due under the agreement with defendant; (2) plaintiff comes into Court with "unclean hands" because he has already sold 6 pieces received from defendant and is therefore unable to make those pieces available for the appraisal which he seeks in this action; (3) the parol evidence rule precludes plaintiff from contradicting, varying or altering the written agreements.

 After argument and careful consideration of the motion to dismiss, we think that the motion should be denied. The fact that plaintiff has received under the contract some of the pieces, having a wholesale value of $9,330, does not preclude plaintiff, who is a jeweler, from presenting evidence, at a trial on the merits, to endeavor to establish any loss he has sustained or may sustain under applicable principles of damage. Defendant's exhibit, attached to his motion, shows that he placed on many of the pieces already delivered wholesale values far in excess of the wholesale values assigned by plaintiff.

 We cannot say with certainty, at this juncture, that the amount in controversy does not exceed $10,000, exclusive of interest and costs. The remaining grounds advanced by defendant are improperly raised on a motion to dismiss. They are substantive defenses to the merits of plaintiff's complaint, which is sufficiently well pleaded to state a claim upon which relief can be granted.

 We now direct our attention to the plaintiff's motion for a preliminary injunction. The collection of antique jewelry consists of 210 to 213 pieces created by Peter Carl Faberge, purportedly jeweler and goldsmith to the Court of Imperial Russia. The pieces, of Russian, French, Swedish and Austrian origin, are unique and of considerable value.

 Plaintiff is a jeweler, residing in New York City. Defendant is a Philadelphia physician, whose interest in antique jewelry is that of artist, collector and dealer.

 Plaintiff, in June, 1968, became aware of this collection of antique jewelry, which was being exhibited at the Brandeis University Museum in Boston, Massachusetts. He communicated with Mr. Kopelman, the owner, concerning possible purchase of the collection. Later, defendant also learned of the collection through the plaintiff and the parties thereafter became embroiled in a dispute as to who had the right to purchase the entire collection.

 In order to resolve this dispute plaintiff and defendant executed a handwritten agreement (Ex. P-5), on October 19, 1968, by which plaintiff agreed to let defendant purchase the entire collection and defendant agreed to sell plaintiff therefrom $15,000 "worth of enamels at a wholesaleprice."

 On October 23, 1968, three agreements were executed: (1) a bill of sale (Ex. P-1) from Kopelman to plaintiff of the entire collection for $73,500; (2) a bill of sale (Ex. P-2) from plaintiff to defendant of the entire collection for $73,500; (3) a bill of sale (Ex. P-3) from defendant to plaintiff of $15,000 worth of "Swedish & Austrian enamels to be selected to the satisfaction of both parties." *fn1"

 On the second page of P-3 appears a handwritten addendum, which states: "The selection of the pieces is to be made within a week & the Buyer is to take delivery at the time of the selection." The signatures of both parties are then subscribed below the handwritten addendum, which was added after the parties had signed the typewritten agreement. Plaintiff's signature, below a typewritten clause acknowledging receipt of the enamels, was deleted; then the addendum was added and signed by both parties.

 On October 24, 1968, the parties met in defendant's office to permit plaintiff to select his enamels under the agreement. A dispute arose over the values to be attributed to each piece and defendant prepared a handwritten list of the pieces selected by plaintiff with defendant's value on the left side of each item and plaintiff's value on the right. (Ex. D-1).

 The plaintiff received and accepted 25 items, which, according to a receipt then signed by him, had a wholesale value of $9,330. *fn2" In addition to Swedish and Austrian enamels, which plaintiff was entitled to select under the ...

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