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September 30, 1996

DAVID ROGATH, Plaintiff, against WERNER E. R. SIEBENMANN, Defendant.

The opinion of the court was delivered by: BATTS

 DEBORAH A. BATTS, United States District Judge

 Plaintiff, David Rogath, brings this action against Defendant, Werner Siebenmann, for breach of contract, breach of warranty and fraud resulting from Plaintiff's purchase of a painting from the Defendant. Plaintiff now moves for leave to amend his Complaint and for partial summary judgment on the breach of warranty claims. Plaintiff also moves to compel a deposit of money with the Court pursuant to Rule 67 of the Federal Rules of Civil Procedure.


 A. Defendant's Initial Involvement with the Painting

 This case revolves around a painting, by a well-known English artist, Francis Bacon, entitled Self Portrait ("the Painting"). (Pl. & Def. 3(g) Statements PP 9.) It was allegedly painted in 1972, in oil, on a 78" by 58" canvas. (Id.) It was signed by Bacon on the back upper left quadrant. (Id. ; Alley Aff. Ex. 1.)

 Approximately in August 1992, Bruce Jenkins ("Jenkins"), a long time acquaintance of the Defendant, asked Defendant to sell the Painting. (Def. Dep. at 18-19.) Defendant agreed to act as an agent in return for a flat fee of $ 50,000.00, as compensation for his services in selling the Painting. *fn1" (Def. Dep. at 21.) Jenkins told Defendant that a wealthy Australian acquired the Painting through Robert Buhler ("Buhler") who "was apparently a friend of Bacon when the sale took place." (Def. Dep. at 22-23, 28.) Jenkins refused to reveal the name of the Australian who owned the Painting. (Def. Dep. at 23.) Defendant asked Buhler's widow, Lilla Duckworth, if she remembered the transaction in which Buhler supposedly acquired the Painting from Bacon. She did not recall such a transaction. (Def. Dep. at 34-36.)

 Defendant believed that Jenkins was acting on behalf of a client of Allan Sawyer ("Sawyer"). (Def. Dep. at 28.) Defendant first met Sawyer prior to 1992, and then again, through Jenkins, in 1992. (Def. Dep. at 10-11.) Sawyer told Defendant that he was acting on behalf of Brodie Collection Services ("Brodie"). *fn2" Sawyer also told Defendant that Brodie was acting on behalf of a wealthy Australian, whose name he would not reveal. (Def. Dep. at 28-29.) Jenkins told Sawyer in a previous conversation that the Painting was owned by a wealthy Australian who would remain anonymous. (Sawyer Aff. P 13.) Jenkins nor Sawyer ever relayed information different from this to Defendant. (Def. Dep. at 29-30.) Sawyer never alleged that he owned the Painting. (Fairstein Aff. Ex. 4.)

 B. Purported Transfer of Ownership of the Painting to the Defendant

 Sawyer sent a letter to Defendant dated January 26, 1993, on Brodie Collections letterhead, signed by Paul Medley, confirming "that as of [January 27, 1993] ownership of the Francis Bacon self portrait) is transferred to: Mr. Wer [sic] Siebenmann." (Def. Aff. Ex. A.) Sawyer prepared this letter in response to Jenkins's statement that some evidence was needed "showing that the Painting had been transferred to Siebenmann." (Sawyer Aff. P 20.) Sawyer knows the owner of Brodie and is permitted to use the office to make phone calls, send faxes, and perform other activities. (Sawyer Aff. P 21.) Paul Medley, who signed the letter with the title "Legal Department" is "just a man working for commission at the Debt Collection Agency." (Sawyer Aff. P 21.) Sawyer did not consult with the owner of Brodie in preparing the letter but told Medley that there would be a fee in it for him if the Painting was sold. (Sawyer Aff. P 22.) Defendant contends, that as a result of this arrangement, he was acting as "nominee" for the Painting. Defendant defines nominee as "an owner of an object for a certain amount of time until it is disposed of." (Def. Dep. at 30-31.) Defendant did not transfer money or anything of value to anyone in order to become owner of the Painting. (Def. Dep. at 81.)

 C. Defendant's Possession of the Painting

 On December 10, 1992, Defendant moved the Painting from London, England, to Geneva, Switzerland and in the care of Mat Securitas. (Def. Dep. at 38, 61.) After seeking Jenkins' permission, Defendant removed the Painting from Mat Securitas on June 4, 1993, because it was too costly to store it there. Defendant moved the Painting to the Baily Shatkin office of which Defendant was part owner. (Def. Dep. at 7, 63.) The Painting was not insured in the Baily Shatkin office and Defendant did not bear the financial risk of the Painting being stolen or damaged. (Def. Dep. at 6-7, 63.)

 D. Marlborough Questions Painting; Barran Aborts Sale

 Defendant gave Tim Pringle ("Pringle"), an art dealer, written permission for access to the Painting at Mat Securitas in order to show it to prospective buyers. Pringle visited the Painting on at least two occasions. The first time, Defendant and Julian Barran, a London art dealer, accompanied Pringle. (Def. Dep. at 54; Pl. and Def. 3(g) Statement PP 13.) The second time, Julian Barran and two people from the Marlborough Fine Art Gallery (London) Ltd. ("Marlborough"), one of whom was Valerie Beston, *fn3" accompanied Pringle. (Def. Dep. at 112-13.) After this visit, Pringle told Defendant that the Marlborough representatives who visited the Painting "weren't sure about the black; they weren't sure about the withered leg." Pringle also told Defendant that Julian Barran told Pringle that Bacon did not paint with pink. (Def. Dep. at 129.)

 Julian Barran, who had visited the Painting twice, who considered purchase of and who was aware of Marlborough's opinion of the Painting, decided not to purchase the Painting. (Pl. & Def. 3(g) Statement at PP 17.) Barran had "resigned himself to the fact that, if the Marlborough Gallery objects it's really difficult because they were Bacon's agent." (Def. Dep. at 186.) Defendant testified that the Marlborough opinion was enough to deter Barran from purchasing the Painting. (Def. Dep. at 186.) E. Miller Aborts Sale

 F. Sotheby's Aborts Sale

 Defendant contacted Sotheby's in Geneva regarding the sale of the Painting. Tobias Myer ("Myer"), a representative of Sotheby's London, viewed the Painting in Geneva. Subsequently, Myer sent a letter dated April 8, 1993, to Defendant proposing that Sotheby's handle the sale of the Painting. (Pl. & Def. 3(g) Statements at PP 24; Pl. 3(g) Statement Ex. G.) After Myer wrote the letter, he asked Defendant if anyone else had seen the Painting. Defendant told Myer about the Marlborough visit and that the Marlborough representatives had made remarks about the Painting. (Pl. & Def. 3(g) Statements PP 25.) As a result of this conversation, Myer called Marlborough. Consequently, Sotheby's decided not to continue with the sale of the Painting. (Pl. & Def. 3(g) Statements PP 27.) Myer told Defendant that "if the Marlborough Gallery were going to be objectionable about the Painting, that they, Sotheby's, couldn't handle it." (Def. Dep. at 115; Pl. & Def. 3(g) Statements PP 28.)

 On April 23, 1993, subsequent to Sotheby's withdrawal of its offer to sell the Painting, Defendant called Marlborough and spoke to John Erle-Drax ("Drax"). (Pl. & Def. 3(g) Statements PP 29.) According to Defendant's notes, Drax had several problems with the Painting: First, that Valerie Beston never saw the Painting prior to her visit to Mat Securitas. Second, that the Painting used shiny black paint while the Francis Bacon paintings at the Tate used matte black. Third, that the Painting has "every element of Francis picture put into one." Finally, that Beston did not believe that Buhler acquired the Painting directly from Bacon. (Pl. 3(g) Statement Ex. H; Pl. & Def. 3(g) Statements PP 33.) Drax believed that Beston was "the sole authority in the world on Francis Bacon." (Def. Dep. at 388.) Defendant testified that Drax addressed these points, as items Marlborough questioned in terms of authenticity. (Def. Dep. 119.) He later testified that Drax was unclear whether he thought the Painting was a Bacon Painting. (Def. Dep. at 120.)

 G. The Sale of the Painting to Plaintiff

 In June 1993, Defendant received a fax from Anita Goldstein, an art dealer in Zurich, Switzerland, through whom Defendant was attempting to sell the Painting, (Def. Dep. at 186-87), which stated:

I have a client ready to buy your painting at the price of 500,000 - U.S.$ . . . . This is a very good and realistic price due to the controversial situation of your painting. I frankly thing [sic] we can not [sic] do better since everybody is afraid of the authenticity.
The client's requirement is: a machine typed authentic paper from Alley.

 (Pl. 3(g) Statement Ex. I.)

 Ronald Alley was a curator at the Tate Gallery and author of a detailed survey of Bacon's work as well as several other writings about Bacon. He viewed the Painting in April 1993, and was convinced of its authenticity. (Alley Aff. PP 2, 7.) He wrote his opinion as to the authenticity of the Painting on the back of a color photograph of the Painting. Weeks later, he received a letter from David Sylvester stating that the Painting was a "nasty fake." (Alley Aff. P 8.) Defendant believes ...

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