ALAN CUTLER, INC., A FLORIDA CORPORATION, APPELLANT,
v.
NEW ENGLAND DIAMOND CORP., A NEW YORK CORPORATION, APPELLEE
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This case concerns whether a consignee is liable for the loss of jewelry due to robbery when the consignment memorandum stated the merchandise was at the consignee's risk. The court affirmed a summary judgment for the appellee, holding the consignee liable.
Yes, the consignee is liable for the loss of the jewelry. The acceptance of the jewelry with the written memorandum, without complaint, rendered the consignee responsible according to the agreement.
“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.”
This quote establishes the key term of the consignment agreement regarding risk of loss.
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Join FLexlaw to unlock all legal intelligenceNew England Diamond Corp. sent jewelry on consignment to Alan Cutler, Inc. The accompanying memorandum stated the merchandise was at the consignee's r…
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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 *702were 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.