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PASTERNACK v. ESSKAY ART GALLERIES

May 22, 1950

PASTERNACK
v.
ESSKAY ART GALLERIES, INC., ET AL.



The opinion of the court was delivered by: John E. Miller, District Judge.

The complaint was filed October 3, 1949, and in due time and on October 31, 1949, the defendants filed a motion to dismiss alleging that the individual defendants, Samuel H. Kirsch and Harold Brand, were acting as agents and servants of the defendant corporation and that said defendants were not personally liable for their alleged acts while acting within the scope of their authority as agents of the defendant corporation. Also, it was alleged that the complaint did not state facts sufficient to constitute a cause of action.

On December 9, 1949, the motion to dismiss was overruled and the court filed with the Clerk of the Court on that date a letter addressed to the attorneys for the respective parties stating the reasons for the overruling of the motion to dismiss.

On December 19, 1949, the defendants filed their answer from which it appears that the defendant Samuel H. Kirsch had been erroneously designated in the complaint as Samuel D. Kirsch, and that the defendant Esskay Art Galleries, Inc., had been erroneously designated in the complaint as Esskay Art Gallery, Inc., and at a later time the court permitted an amendment to the complaint by interlineation to show defendants' correct names as Samuel H. Kirsch and Esskay Art Galleries, Inc. Also, it was called to the attention of the court that the name of plaintiff is correctly spelled Pasternack instead of Pasternak as appeared in the pleadings, and this erroneous designation was likewise corrected.

The cause proceeded to trial to the court without a jury on May 15 and 16, 1950, upon the issues as made by the complaint and answer, and having heard and considered all of the testimony adduced, including the ore tenus testimony of witnesses, the depositions of Joseph A. Goodman and the defendant, Harold Brand, and the answers to the interrogatories propounded to plaintiff on May 15, 1950, and having examined the exhibits to the testimony, the court now makes and files herein its findings of fact and conclusions of law, separately stated.

Findings of Fact

1

The plaintiff, Joseph W. Pasternack, is a citizen and resident of the State of Louisiana.

The defendant, Esskay Art Galleries, Inc., is a corporation organized and existing under the laws of the State of Arkansas and is engaged in the business of operating a jewelry auction in the City of Hot Springs, Arkansas.

The defendant, Samuel H. Kirsch, is a citizen and resident of the State of Arkansas and resides in Hot Springs, Garland County, Arkansas.

The defendant, Harold Brand, is a citizen and resident of the State of New Jersey.

The amount involved herein exceeds the sum of $3,000.00, exclusive of interest and costs.

2

A few days prior to February 16, 1949, the plaintiff, accompanied by his wife, was sojourning in the City of Hot Springs and had visited the place of business of the defendant, Esskay Art Galleries, Inc., where he had purchased at public auction certain personal property, including rugs and jewelry. At that time the plaintiff became acquainted with the defendant, Harold Brand, who was employed by the defendant, Esskay Art Galleries, Inc., as an auctioneer. At that time the defendant Brand learned that the plaintiff Pasternack was a man of considerable wealth.

It appeared at that time that the plaintiff Pasternack would be required to vacate his hotel accommodations within a very short time because it was the policy of the hotels in Hot Springs, Arkansas, at that particular season to permit guests to remain only for a limited period of time. As the result of the conversation between the plaintiff Pasternack and defendant Brand the latter undertook to assist the plaintiff to retain his present accommodations or to obtain accommodations in another hotel. The defendant Brand requested the defendant Kirsch to give the matter his attention, which the defendant Kirsch did, and as a result thereof, the plaintiff obtained other satisfactory hotel accommodations, and at the same time the defendant Kirsch rendered the plaintiff a service in obtaining for him railroad tickets and accommodations. At that time the plaintiff had not personally met the defendant Kirsch, but either the day of the first purchases or the next day the defendant Brand was invited by the plaintiff and Mrs Pasternack to have lunch with them, which invitation the defendant Brand accepted, and while at lunch the defendant Kirsch appeared and was introduced as the person who had acquired for them the hotel rooms and had rendered them a service in connection with the railroad reservations. The plaintiff and his wife expressed their gratitude to the defendant Kirsch for the favors that he had done them. The next day or the following day subsequent to the luncheon the plaintiff accompanied by his wife was walking along the sidewalk adjacent to the place of business of the defendant Esskay Art Galleries, Inc., where they again met the defendant Brand who appeared to them to be somewhat agitated and who advised them that the Esskay Art Galleries, Inc., had five pieces of jewelry which it was necessary to sell before 3:00 P.M. This meeting occurred about 2:30 P.M. or about 30 minutes prior to the deadline for making the sale of the jewelry. The defendant Brand advised the plaintiff and his wife that if a sale was not made that afternoon before 3:09 P.M. that the title to the jewelry or its proceeds would vest in a cat and dog hospital and that he felt that someone other than such a hospital should have the jewelry. The defendant Brand stated that he had a telegram from the "Ewing Estate in the East" to that effect but did not show the telegram to the plaintiff. At the insistence of the defendant Brand the plaintiff and his wife entered the place of business and the plaintiff was conducted to an office in the rear of the place of business where he was shown the jewelry and where he inspected the same. A discussion between the plaintiff and the defendant Brand ensued about the value of the jewelry and the value was represented by the defendant Brand to be approximately $46,000.00. This occurred only a few minutes prior to the deadline for a sale prior to 3:00 P.M.

3

The sales made by the defendant, Esskay Art Galleries, Inc., which deals in jewelry, rugs, silverware, linens and other objects of household equipment and personal adornment and of art, are made at public auction. It employed trained auctioneers to conduct the sales and it is the usual practice where articles of considerable value are to be offered to show the articles to prospective purchasers prior to the auction sales, as was done in this case.

4

The plaintiff is a man of several years of business experience. He is interested in the operation of a bank, a mercantile establishment and other enterprises in his home town of Ferriday, Louisiana. He is of a more or less prententious mien ...


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