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FIRE ASSN. OF PHILADELPHIA v. SAKS & CO.

November 24, 1954

FIRE ASSOCIATION OF PHILADELPHIA, Ben Wacek and Mabel E. Wacek, Plaintiffs,
v.
SAKS & CO., Inc., Defendant



The opinion of the court was delivered by: MURPHY

This cause having been tried by the court the following are made

Findings of Fact

 1. The plaintiff, Fire Association of Philadelphia, is a corporation organized and existing under the laws of the State of Pennsylvania.

 2. The plaintiffs, Ben Wacek and Mabel E. Wacek, are both citizens of the State of Maryland.

 3. The defendant, Saks & Co., Inc., is a corporation organized and existing under the laws of the State of New York.

 4. The plaintiffs, Ben Wacek and Mabel E. Wacek, in September 1945 purchased a coat of wild mink from the defendant for $ 5100, including the excise tax.

 5. Thereafter the plaintiff, Mabel E. Wacek, gave ordinary wear to the coat until April 14, 1947, when she delivered it to the defendant for storage, repairs, cleaning and glazing.

 6. At the time of delivering the garment to defendant the plaintiff placed a valuation of $ 500 on such coat and agreed to pay the storage charge of $ 10 at such valuation.

 7. The contract of storage provided: 'Storage charges are based upon the value specified for the article * * * covered by this receipt * * * and such value is declared and agreed to be the full valuation of such article * * *. In the event of a total loss for which we [Saks & Company] may be liable under this agreement, our liability shall not exceed said value.'

 8. Thereafter, on October 15, 1947, when plaintiff Mabel E. Wacek demanded from defendant the return of her mink coat, she was advised by defendant that it was lost.

 9. The aforesaid mink coat had been delivered by defendant, after its receipt from one of the plaintiffs Wacek, to the Dri-Wear Fur Processing Co. for cleaning and glazing. While in possession of that company it was lost or stolen.

 10. Plaintiffs Wacek during the times hereinbefore mentioned had insured the garment with the Fire Association of Philadelphia. Pursuant to a proof of claim filed with said insurer for loss of the coat, they received $ 5100, and plaintiff, Fire Association of Philadelphia, became subrogated to the rights of the plaintiffs Ben Wacek and Mabel E. Wacek, to the extent of the payment of $ 5100.

 Discussion

 Plaintiff, Mrs. Wacek, testified that she was unable to recall numerous material facts concerning this transaction. It should be noted that the same witness testified that the coat was purchased in 1946 in the face of evidence that she requested and received from defendant, after loss of the coat, a bill of sale. This bill of sale showed purchase in 1945 and the original records also record 1945 as the year of purchase. A receipt for a fur work order, calling for cleaning and glazing of the coat at a charge of $ 15, and specifying policy no. 19150 and 'customer's value $ 500 -- ,' was signed by this witness. Another receipt calling for the relining of the coat at no charge, 'as per letter of Sept. 11-1945,' also specified the same policy number and customer's value in the same amount. Finally the storage receipt for the coat, specifying the identical policy number and valuation, and indicating charges of $ 10 for storage and $ 15 for work, was not only signed by the witness, but also had inscribed thereon additional directions in her handwriting. In the ...


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