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OSWALD v. ALLEN

June 11, 1968

Dr. Werner OSWALD, Plaintiff,
v.
Jane B. ALLEN, Defendant


Pollack, District Judge.


The opinion of the court was delivered by: POLLACK

FINDINGS AND OPINION

POLLACK, District Judge.

 Contentions

 Plaintiff seeks specific performance of an alleged contract calling for delivery by the defendant of all Swiss coins owned by defendant upon the payment of $50,000 by the plaintiff. *fn1"

 The defendant alternatively asserts that (1) the minds of the parties never met on the subject matter of the alleged agreement and no contract was thus entered into by the parties; and (2) even if an oral contract existed, its enforcement is barred by the applicable Statute of Frauds (New York Personal Property Law, McKinney's Consol. Laws, c. 41, Section 85, subd. 1(a)), as it existed on the date of the alleged agreement, April 7, 1964.

 Findings of Fact

 1. Jurisdiction exists by reason of diversity of citizenship, the plaintiff being a citizen of Switzerland and the defendant a citizen of New York. The amount in controversy exceeds the sum of $10,000 exclusive of interest and costs.

 2. Defendant was the owner of several collections of valuable coins which had belonged to her father and uncle. When the coins came into defendant's possession, they had already been separated into the "Swiss Coin Collection", the "Rarity Coin Collection", the "German Ecclesiastical Collection", and other collections. The separate collections were contained in cigar boxes bearing identifying labels. Each coin in each collection was in a separate small envelope marked with a key number representing the coin collection to which it belonged. A detailed perpetual type inventory was maintained for the "Rarity Coin Collection". The defendant's collections were housed in the vaults of the Morgan Guaranty Trust Company in New York City and the Newburgh Savings Bank in Newburgh, New York. The "German Ecclesiastical Coin Collection" was located at the former bank and the "Rarity Coin Collection" and the "Swiss Coin Collection" were located in separate locked vault boxes at the latter.

 3. Prior to April 4, 1964, Mr. Francesco Cantarella, an employee of the Chase Manhattan Bank in charge of the Bank's "Money Museum", telephoned the defendant, Mrs. Jane B. Allen, to express the interest of the plaintiff, Dr. Werner Oswald, in purchasing the Swiss collection from Mrs. Allen.

 4. On April 6, 1964 the parties met at the Morgan Guaranty Trust Company where the plaintiff examined the defendant's "German Ecclesiastical Coin Collection". These were housed in boxes which bore the catalogue key number "37" as well as an individual identification number. After an examination lasting approximately two hours, Dr. Oswald called attention to the so-called Wallis Ducat which he considered to be "Swiss" and which he thought properly belonged with a "Swiss Collection". Mrs. Allen thereupon removed this coin from the "German Ecclesiastical Collection" intending to add it to her "Swiss Collection".

 5. On April 7, 1964, Mrs. Allen and Dr. Oswald accompanied by Mr. Cantarella, Mrs. Allen's two sons, and Dr. Oswald's brother, Victor Oswald, went to the Newburgh Savings Bank where Dr. Oswald for a period of about four hours inspected coins contained in cigar boxes labelled "Switzerland"; he made three pages of notes on the coins he examined. Each such coin was contained in a small envelope bearing the key number "68" as well as an individual identification number.

 6. When that examination was completed, Mrs. Allen asked Dr. Oswald whether he would be interested in seeing some of the coins in her "Rarity Collection". He replied in the affirmative and was shown two cigar boxes labelled "Rarities" containing a large number of highly valuable coins of many different countries. He looked particularly at a dozen or so coins, some of Swiss origin. All of these coins were in individual envelopes each of which bore the key number "62" in addition to an individual identification number. Dr. Oswald's inspection of the "Rarities" did not include all of the Swiss coins contained in this collection.

 7. Dr. Oswald added at the foot of his notes on the coins in the "68" key number collection, a listing of ten Swiss coins, six of which he had seen in the "62" key number collection, which number identified the "Rarity Collection" items. One of the ten items added to Dr. Oswald's list was the Wallis Ducat from the "German Ecclesiastical Collection" mentioned above and bearing the key number "37" on the envelope containing it. The remaining three items added to the list were not identified in the evidence.

 8. Following this inspection the parties motored back to New York City. During the trip Victor Oswald, acting as agent and interpreter for his brother, offered to purchase the Swiss coin collection from Mrs. Allen for $40,000. Dr. Oswald believed that he was thereby offering to purchase those coins contained in envelopes bearing the key number "68" contained in boxes bearing the stamp "Switzerland" and the Wallis Ducat (bearing key number "37"), and those Swiss coins shown to ...


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