As youi may rememeber we are Art consultants and about a year ago we were trying to establish a good working relationship with an important art expert and dealer in Tiffany lamps. The dealer offered us an important lamp to sell and we found a buyer. The deal was concluded and we paid him after receiving the funds from the buyer - he knew we were not buying it for ourselves . Some time later our buyer expressed interest in acquiring other lamps and we approached our "source" the expert who offered us 4 other lamps to sell. Each time we were paid by the buyer and then paid the seller (or consignor as we prefer to call him) The buyer (as you may rememeber) sold 3 lamps of the 5 at International auction and the last two - the most expensive did not sell. The buyer is claiming in a law suit that because we agreed to receive a part of our sales commisssions subject to the sales results that on one hand we are partners witha fiudiciary reponsibility ( although there has been no oss a syet) and that we sold inferior goods (because they did not sell) - depite the fact there is no agreement as such and he made us sign agreements stipulating that he was the owner and had full title. Everyone else including the expert (who offered them to us to sell) and the major auction house who sold the other lamps agree that the lamps were appropriately priced etc but we will have to defend ourselves and have been advised that we will need to implead the seller (who happens to be the main expert in the field. Probably a good thing since he has indicated in writing that the lamps were rare and worth the money ). We in our mind because of the close relationship that we had and the discussions re the price we had with the seller prior to completing the sale consider him to be a "de facto" consignor selling through us as an agent . He thinks he is simply a seller selling to us. What is his position consignor or seller and does iot matter if we have to implead him ?
Country relating to Question: United States
State (if USA): New York
Thank you for using Just Answer. If you require clarification, please feel free to post a follow up question.Receiving a commission does not make you a partner of the customer. They requested more lamps from your consignment source and you provided them. The fact that the lamp never sold means you never received a commission anyway, so the court will be at a loss to find damages on the part of the buyer. The customer knew you were a middlemean and not the owner.If the seller, in fact, warranted and represented the lamp as something it was not, then they could be impleaded, but I still do not see the customer prevailing against anyone. They appearantly, according to all the experts, paid a fair price and got what they bargained for.The bottem line is that you are a consignment seller and no partnership is established.
Thankyou. I think the point I am trying to make is this : We have always maintained that we were selling consigned material but the seller is saying he sold them to us. We have emails showing that we were working closely with the seller back and forth to try and get to a price level agreable with the buyer so as to be able to sell them and establish good working realtionships with the sel;ler / expert.
The systenm agreed with the seller was that once the sale was agreed with our buyer and we were paid we then paid the seller who had in the meantime entrusted them to us to show the potential buyer.
We are being advised that we have to implead the seller, (who is on our side so to speak) I assume that means sue or involve him in some way because he consigned or as he maintains sold them to us knowing that we were trying to make a sale for him by selling them on.
Does it make a difference whether we were agents or buyers?. The reason is that while we all think this is a frivolous suit and the two complaints made will be either be thrown out in a MTD (if thats the right thing to do?) or failing which lost in court by the plaintiff - but in the unlikely event that the court finds for the plaintiff on the claim that the Lamps quality and value were not commensurate with the price what is the original sellers position and responsability.
Also regarding the MTD this is a costly business (less so than defending the suit) but given that apparently judges usually try to give the temporary benefit to the plaintiff is it best to first go for the MTD and risk also having to go to court anyway?
You are consignment sellers. You are not the lawful owners of the lamps. There is a paper trail and that status was disclosed, established and known by all the parties.There is little reason to go the MTD route since the plaintiff can just go to court anyway if they are displeased with the result. I also disagree that judges are prone to give benefit to the plaintiff. The plaintiff has the burden of proving their claim and most judges would see this as a frivolous claim.
I really appreciate your input - its a somewhat fresh approach. Yes we are consignment sellers but you didnt answer my question - if it gfoes to court and in the unlikely event we lose in court what is the reponsibility of the original owner - the seller ?
Also in this case since we are talking about 2 rare lamps that have not sold so what will happen since while some value has been lost by overexposure by the seller offering them around following the auction they are still very valauble and in time will no doubt sell for the sale price or more
Furthermore you are recommending not attempting an (MTD) Motion to dismiss. We are being advised by 2 lawyers we should and one maybe we should not and if we do of a legal fee of some $15,000 to do it. Then of course if we lose then it goes to court anyway with more costs - what I dont understand is if the motion(s) are dismissed in an MTD how can he sue us anyway?
Sorry, misunderstood your acronym as request for mediation. Definitely go for dismissal. This plaintiff has not a leg to stand on.There is nothing to establish any warranty or representation of ownership on your part or lack of expertise on the part of the buyer.
You didnt answer my question:
1) What would be the original sellers responsibility in the unlikely event we dont get an MTD and it goes to court and we lose
2) Given that the lamps are still rare and valuable - the fact that they havent sold doesnt mean the buyer has lost everything far from it and the consenus is that if he waits till the auction is forgotten he will no doubt recoup all his investment and more - so how would the court feel about that in your opinion?
3) If we win I suppose we could at that point sue for legal costs and our commissions owed us by the buyer on what has sold at a profit?
Finally given that you feel its a frivolous case and that the MTD might cost us quite a bit on one hand and on the other that the law suit would likely cost the buyer a fortune would it be worth the gamble just to let them sue therby putting
1. You could plead in the original seller or file a separate claim down the road if there was fraud.2. I do not believe the buyer has a claim against you unless you made material misrepresentations of fact and then their damages would be based on the difference in value between what they bought and what you warranted.3. You would not be entitled to legal fees unless that was in a written agreement. You would be and are entitled to any agreed commissions.4. Go for the motion to dismiss. Your chances are not bad.
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