Silver v. Security Jewelry & Loan Co.

BRAY, J. Defendants appeal from a judgment awarding plaintiff $11,270 balance due on a contract of sale.

Question Presented

Was the contract ambiguous, thereby permitting the admission of parol evidence to explain it?

Evidence

The controversy is over the question of whether or not one of two separate inventories of pledged goods was included in the contract price of $15,000. On August 9, 1954, plaintiff and defendants Neil Blumenthal and Carole R. Shostak* signed a contract under which plaintiff agreed to sell and said defendants agreed to buy plaintiff’s jewelry, loan and pawnbroker business “together with all of the fixtures, furniture, furnishings, safes, and all other personal property, apparatus and paraphernalia ...” As drawn, the contract included “stock in trade of watches and jewelry.” Before signing this clause was stricken out. The contract as drawn also stated that being sold was “the sole possession of and all equities of the seller in the pledges of said business.” Before signing, however, the following was added after the word “business”: “save and except those pledges specifically set forth in separate agreement and schedule attached hereto.” The contract further provided that the parties would “jointly take an inventory of all pledges existing and in effect as of August 31.” It was agreed that the seller would continue to conduct the business until August 31 when the buyer would take over. Plaintiff executed a bill of sale dated August 31 which included in the property transferred “all equities of the seller in the pledges of said business.” This was delivered at the time of the delivery of the three cheeks hereafter mentioned. The purchase price was $15,000, of which $5,000 was [254]to be paid upon execution of the contract, the balance to be evidenced by a promissory note, payable in monthly installments of $250 commencing October 1. The note was never executed.

No inventory of pledges was attached to the contract. However, on the closing date, August 31, two inventories were prepared. Defendant Neil signed one copy of each and gave them to plaintiff. Plaintiff signed one copy of each, giving them to Neil. .One was for pledges made prior to February 24, 1954, totalling $1,051.50. These pledges had expired technically but the interest thereon was being paid and had been pledged by special customers. The inventory stated that receipt of the listed pledges was acknowledged. by the buyers and that they agreed to keep these pledges subject to redemption by the pledgors for at least one year. It also acknowledged receipt by 'the seller of $1,051.50 in consideration of which the seller assigned to buyer all his interest in said pledges or the equities therein. The second inventory was of the other pledges of the business. These totaled $7,055.50 and the inventory contained a receipt of the listed pledges “as per terms of that certain Agreement, ’ ’ the contract above mentioned. It further contained acknowledgment of payment of $7,055.50 “in full for and in consideration. of the transfer and sale of all the equities in and to the hereinabove itemized and listed pledges.” On the same day as the. inventories were signed defendant Neil gave plaintiff three checks, one for $4,500 dated August 30 (admittedly this was the initial payment which the parties had agreed should be less than that provided in the contract), a second, dated August 31, for $7,055.50; on the back was typed “All Equities in pledges”; a third, dated the same day, for $1,051.50; on its back was typed “In full for pledges set forth in separate agreement.” January 12, 1955, defendant Neil tendered plaintiff a check for $3,444.50, contending that to be the- balance due under the contract and for the pledges listed in the first inventory above mentioned, claiming credit against the $15,000 contract price for the total of the three checks.* Plaintiff refused to accept the tender, claiming that the only payment on the contract price was the $4,500 and that the other sums were paid for the pledges which plaintiff claimed were excluded from the contract.