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April 9, 2001


The opinion of the court was delivered by: Mukasey, United States District Judge.


Plaintiffs Robert S. Weil and Jean K. Weil sue Mark Murray, Ian Peck, and John or Jane Doe for breach of contract, specific performance, and injury to property, arising from defendants' alleged agreement to buy a painting by Edgar Degas. Plaintiffs also sue Murray for breach of warranty. Plaintiffs allege subject matter jurisdiction pursuant to 28 U.S.C. § 1332, diversity of citizenship.*fn1 Plaintiffs move for summary judgment pursuant to Fed. R.Civ.P. 56 against Murray on their breach of contract, specific performance, and breach of warranty claims. Peck moves for summary judgment against plaintiffs as to all the claims brought against him. For the reasons stated below, plaintiffs' motion for summary judgment as to their action for the price is granted. Peck's motion is denied.


On October 19, 1997, Murray and Sam Lehr, a business acquaintance of his, traveled to Montgomery. At Weil's home, Murray viewed various paintings in Weil's collection, including a painting by Edgar Degas titled "Aux Courses" (the "Degas"), which Murray examined under ultraviolet light. (Weil 56.1 ¶¶ 5-7; Murray 56.1 ¶¶ 11, 12; Peck 56.1 ¶¶ 14, 15)

Murray claims to have later discussed the Degas with Peck, who, according to Murray, expressed an interest in buying it and asked Murray to arrange to have it brought to New York. (Murray Aff. ¶ 10; but see Murray Dep. at 53) Peck, on the other hand, asserts that he did "not specifically" discuss the Degas with Murray prior to its arrival in New York. (Peck Dep. at 64) Nonetheless, Murray telephoned Weil and told him that he had spoken with someone who might be interested in purchasing the Degas. (Weil 56.1 ¶ 9; Murray Dep. at 55) On November 3, 1997, the director of Murray's gallery, Stephanie Calman, traveled to Weil's home in Alabama. (Weil 56.1 ¶ 10; Murray 56.1 ¶ 19; Peck 56.1 ¶ 18) Calman, on behalf of Murray, and Weil executed an agreement which provided for consignment of the Degas to Murray's gallery "for a private inspection in New York for a period of a week" from November 3, "to be extended only with the express permission of the consignor." (Weil 56.1 ¶¶ 12, 13; Murray 56.1 ¶¶ 19, 20; Peck 56.1 ¶¶ 18, 19) Calman returned to New York with the painting the same day. (Weil 56.1 ¶ 15; Murray 56.1 ¶ 20; Peck 56.1 ¶ 23)

Murray then showed the Degas to Peck. (Murray 56.1 ¶ 21; Peck 56.1 ¶ 24) Peck acknowledges only that he expressed an interest in purchasing the Degas after seeing it, and that the price of $1,225,000 was discussed. (Peck Dep. at 77, 79; see also id. at 150-51) Murray asserts that on or before November 8, 1997, he agreed with Peck that Peck would purchase the painting for $1,225,000 with Murray "acting as a broker." (Murray Aff. ¶ 12)

On or about November 8, 1997, Murray called Weil to inform him that he had a buyer for the Degas, and the two orally agreed to the sale. (Murray 56.1 ¶¶ 26, 27; Weil Dep. at 109-10) The agreement subsequently was confirmed in writing. (Murray 56.1 ¶ 46; Weil Dep. at 118-119) Peck's attorney wrote the first draft. (Murray Dep. at 77; Peck Dep. at 18, 90; Stern Aff. in Opp., Ex. N) Murray retyped that draft, changing the references to the buyer from Peck to Murray, and changing the purchase price from $1,125,000 to $1 million. (Brody Aff., Ex. 11; Stern Aff. in Opp., Ex. N) Murray then forwarded the draft to Weil. (Murray Dep. at 77-80) Weil responded with an alternative version. (Weil 56.1 ¶ 19; Murray 56.1 ¶ 52) Murray retyped Weil's version on Mark Murray Fine Paintings letterhead. (Weil 56.1 ¶ 20; Murray 56.1 ¶ 58) Murray contends that he showed Peck "a version" of the agreement, drafted by Weil and retyped by Murray, and that Peck "authorized" him to sign it.*fn2 (Murray Aff. ¶¶ 31, 32; Murray Dep. at 141) Peck, on the other hand, claims that there was "no discussion" of the version of the agreement Murray showed him, and that Murray merely brought it to him so he would know how much to pay. (Peck Dep. at 98-99; see also Peck 56.1 ¶¶ 42, 43) On November 26, 1997, Murray signed the agreement drafted by Weil and retyped on Murray's letterhead. (Weil 56.1 ¶¶ 19, 20; Murray 56.1 ¶ 63) Weil signed the agreement on December 1, 1997. (Weil 56.1 ¶ 21; Murray 56.1 ¶ 64)

The signed agreement defines the "buyer" as Mark Murray; the "sellers" are defined as Jean K. Weil and Robert S. Weil, Partners Weil Brothers. (Stern Decl., Ex. N) The written agreement states:

In confirmation of our oral agreement. Sellers agree to sell and Buyer agrees to buy that certain oil on panel painting by Edgar Degas, known as Aux Courses . . . for the sum of One Million Dollars ($1,000,000), net to Sellers, said sale to have taken effect and hereby confirmed by this contract duly signed by Buyer and Sellers. It is understood that the eventual Buyer is an Undisclosed Principal client of Mark Murray, and that said undisclosed principal shall also be bound by this agreement.

(Stern Decl., Ex. N) After reciting payment procedures and warranties of title and authenticity, the agreement concludes as follows:

It is expressly understood between Buyer and Sellers that the ultimate buyer is an Undisclosed Principal unknown to the Seller. Consequently, Buyer warrants that said Undisclosed Principal guarantees this purchase and performance in every respect. Should Sellers not receive full payment by December 8th, Buyer agrees to divulge to the Sellers the exact identity of the Undisclosed Principal, and the Undisclosed Principal must hereby guarantee this purchase and stand in the shoes of the Buyer, should there be cause for non-performance in any particular by said Ultimate Buyer.

(Stern Decl., Ex. N) Neither Murray nor anyone else ever paid Weil the $1 million. (Weil 56.1 ¶ 30) Nonetheless, Murray maintained possession of the Degas from November 3, 1997 through March 25, 1998, when Weil requested its return. (Murray 56.1 ¶¶ 77, 79; Murray Aff. ¶ 43)

At some point before its return to Weil, the Degas was sent to Juan Perdiguero, an art conservator. Although Murray claims the painting was sent at Peck's request (Murray Aff. ΒΆ 21), Peck asserts that he and Murray "collectively" went to Perdiguero. (Peck Dep. at 14) A "condition report" prepared by Perdiguero and dated December 3, 1997, showed that Perdiguero sought to correct the alleged deterioration of the painting. (Stern Decl., Ex. Q) Peck paid for ...

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