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June 24, 1993


The opinion of the court was delivered by: ANITA B. BRODY

 I. Introduction

 The plaintiffs brought this lawsuit seeking an accounting of the defendants' sales of plaintiffs' jewelry, any amounts due plaintiffs as a result of this accounting, the return of any unsold pieces of plaintiffs' inventory and attorneys fees and costs. The parties in this case are jewelers and owners of jewelry businesses.

 In 1989, the plaintiffs, suffering from poor health, decided to close their jewelry business. They sought the defendants' assistance. Now the parties dispute whether they entered into a consignment agreement whereby defendants would sell plaintiffs' jewelry inventory on consignment. During a bench trial, I heard evidence from the plaintiffs that the transaction at issue was a consignment and from the defendants that the transaction was not a consignment but a sale. The issue now before me is whether this evidence of the parties' conduct and intent supports a finding that they entered into a consignment arrangement. I find that it does not and as a result that plaintiffs are not entitled to an accounting or to recover the costs and fees associated with this action.

 II. Findings of Material Fact

 1. The plaintiffs, Martin A. Taylor and Sarah Taylor, owned and operated a jewelry business, incorporated as Martin A. Taylor Company, Inc., at 1015 Chestnut Street, Philadelphia, Pennsylvania for forty-four (44) years. (N.T. Taylor at 7-8.) *fn1"

 2. Mrs. Taylor worked in the office, the "interior," and knew most of the customers. Mr. Taylor traveled around the country and met with salespeople. (N.T. Taylor at 14.)

 3. Taylor Inc. primarily conducted business with the Post Exchanges for the United States Army, Air Force, Navy and Marine Corps. (N.T. M. Taylor at 8.)

 4. Taylor Inc. did not cater to individual retail customers. (N.T. Taylor at 8.)

 5. From 1970 to 1985, the peak years of business for Taylor Inc., it employed ten to twelve people on the premises and another twelve salespeople working on commission. (N.T. Taylor at 12-13.)

 6. Mr. Taylor maintained inventory records which identified each piece of jewelry he had. (N.T. Taylor at 10.)

 7. At the end of each year, Mr. Taylor physically inventoried his stock. (N.T. Taylor at 9-10.)

 8. With the exception of his more valuable jewelry, Mr. Taylor kept a stock record card for each piece of inventory. On each stock record card he recorded information particular to that piece of jewelry including the price he paid for the piece, the type of merchandise it was and the quantity of that merchandise he had in stock. (N.T. Taylor at 10.)

 9. Mr. Taylor maintained separate record cards for his more valuable items, like diamonds larger than one-half carat. On these cards he recorded information about each piece including its weight, clarity and color. (N.T. Taylor at 10-11.)

 10. Taylor retained records of each purchase or sale of jewelry for seven years. (N.T. Taylor at 12.)

 11. Also, each year Mr. Taylor or someone in his office would fill out a proposal for a jeweler's block policy insurance coverage for Taylor, Inc. (N.T. Taylor at 82-83.)

 12. Mr. Taylor reviewed these insurance proposals before signing them. (N.T. Taylor at 82.)

 13. The defendants, Morton Wachtler ("Wachtler"), Walker Jewelry Company, Inc. ("Walker") and M. Wachtler and Sons, Inc.,("MWS") are engaged in the wholesale and retail jewelry business in New York City. (N.T. Wachtler at 62-64.)

 14. Walker, located at 50 West 47th Street, buys and sells jewelry at wholesale prices. (N.T. Wachtler at 63.)

 15. MWS engages in both wholesale and retail purchases and sales of jewelry. Approximately ten to fifteen percent (10-15%) of its business is retail. MWS conducts business at 8 West 47th Street. (N.T. Wachtler at 63.)

 16. Taylor Inc. closed its business in 1989.

 17. During the three years preceding the close of their business, Mr. and Mrs. Taylor and one of their employees suffered from debilitating medical problems. Mrs. Taylor became ill with emphysema. (N.T. Taylor at 13.) She did not return to the business. (N.T. Taylor at 14.)

 18. Shortly after Mrs. Taylor became ill, Benjamin Miller, Mr. Taylor's brother-in-law and the store manager, also became ill and was unable to actively participate in the business. (N.T. Taylor at 14.)

 19. Finally, during this same period, Mr. Taylor became depressed and despondent. (N.T. Taylor at 14.) In addition, he learned that he suffered from several health problems including a heart ailment and diabetes. (N.T. Taylor at 15.)

 20. In early 1989, because of their deteriorating health, the Taylors decided to give up their jewelry business. (N.T. Taylor at 15, 58.)

 21. Mr. Taylor did not have a specific plan for closing the business. (N.T. Taylor at 15.) At first he thought of scaling the business back and operating it on a smaller scale. (N.T. Taylor at 15.) Then, he decided to completely wind down the business. (N.T. Taylor at 15-16.) Mr. Taylor made the decision to close his business a few months before contacting Mr. Wachtler. (N.T. Taylor at 58.)

 22. Approximately six months before contacting Mr. Wachtler, Mr. Taylor invited David Atlas to look at his inventory for the purpose of purchasing it. (N.T. Taylor at 133-35.) *fn2"

 24. In May 1989, Mr. Taylor telephoned Mr. Wachtler. (N.T. Taylor at 16; N.T. Wachtler at 64.)

 25. He called Mr. Wachtler because he had a lengthy business relationship with Mr. Wachtler and Mr. Wachtler's now deceased partner, George Altman, and because Mr. Wachtler's firm was experienced in liquidating jewelry merchandise. (N.T. Taylor at 16; N.T. Wachtler at 64.) Although the parties had done business for many years, Mr. Taylor had never before consigned goods to Walker. (N.T. Taylor at 91.)

 26. Mr. Taylor told Mr. Wachtler that because he, his wife and his brother-in-law were in poor health he wanted to liquidate his business. (N.T. Taylor at 17; N.T. Wachtler at 64.) Mr. Taylor asked Mr. Wachtler to look over and purchase the merchandise. (N.T. Wachtler at 64.)

 27. Mr. Wachtler agreed to visit Taylor, Inc. within the next week to ten days from the time of Mr. Taylor's telephone call. (N.T. Taylor at 17.)

 28. On May 23, 1989, Mr. Wachtler visited Taylor, Inc. and met with Mr. Taylor. (N.T. Taylor at 17; N.T. Wachtler at 65.)

 29. Mr. Wachtler arrived at Taylor, Inc. between 11:00 and 11:30 A.M. (N.T. Taylor at 17; N.T. Wachtler at 65.)

 30. Mr. Wachtler asked to see Taylor Inc.'s merchandise and showed particular interest in the diamond inventory. (N.T. Taylor at 17-18; N.T. Wachtler at 65.)

 31. Mr. Wachtler spent between four and five hours viewing Mr. Taylor's inventory. (N.T. Taylor at 18.)

 32. At the end of the day, Mr. Taylor asked Mr. Wachtler for $ 1,000,000 or $ 1,100,000 for his inventory. (N.T. Wachtler at 65.) Mr. Wachtler did not agree to sell Mr. Taylor's inventory on consignment. (N.T. Wachtler at 70, 100-01.)

 33. Before loading his car with jewelry, Mr. Wachtler suggested that he sign a memorandum. (N.T. Wachtler at 66.) Mr. Wachtler prepared and signed a memorandum, on one of Mr. Taylor's forms, entitled "MEMORANDUM" specifying "1 lot of jewelry" and stating a figure of $ 950,000. (N.T. Wachtler at 65-66; N.T. Taylor at 22, 73; Exhibit P-5.) The boilerplate language of this memorandum states:

The merchandise described herein is consigned only. It is received by the consignee upon the express agreement that the title to the merchandise used to the proceeds thereof to the extent of the within invoiced prices shall be and remain in the consignor, ...

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