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发帖数: 21830 | 1 Hartmann v. McKerness,
Case number: 2011 BCSC 927
http://www.bcjustice.net/index.php?option=com_content&view=arti
Citation:
Hartmann v. McKerness,
2011 BCSC 927
Date: 20110711
Docket: S086381
Registry: Vancouver
Between:
Dr. Oliver Hartmann
Plaintiff
And:
Wendy McKerness, aka Wendy Woodhouse-McKerness
and Christopher Fulton, aka Christopher McKerness
Defendants
Before: The Honourable Mr. Justice Johnston
Reasons for Judgment
Counsel for the Plaintiff:
L.N. Robinson and S. Hellmann
Appearing In Person:
C. Fulton
Appearing In Person:
W. McKerness
Place and Date of Trial:
Vancouver, B.C.
November 22-23, 26 and 29, 2010
and March 3-4, 2011
Place and Date of Judgment:
Vancouver, B.C.
July 11, 2011
[1] In this action, Dr. Hartmann claims damages for breach of
contract on the basis that he was induced to pay $50,000 for a wristwatch
represented by the defendants to be a genuine Patek Philippe watch, and the
watch he received was not genuine. He pleads that the representation as to
authenticity was a term of the contract, the breach of which was fundamental
. He says other representations made by the defendants induced him to enter
into the purchase contract, and those representations were made negligently,
and were false, inaccurate, and misleading as to authenticity.
[2] Although not pleaded, the plaintiff argued that the sale was
by description, and the watch was not of merchantable quality.
[3] The defendants respond by saying that Dr. Hartmann received
what was described, and that, in any event, if someone is liable to Dr.
Hartmann, which the defendants deny, the liability is that of the defendant
Christopher Fulton and not his mother, Wendy McKerness.
[4] The dispute arises out of an internet sale through eBay. In
April 2008, Dr. Hartmann saw a watch offered for sale. The watch was
described as:
PATEK PHILIPPE RARE MODEL ROSE PINK GOLD VINTAGE 1950’S
Patek Philippe man’s rare model wristwatch in 18 carat rose/pink gold. Came
from family members 40 year collection of finest mid-Century art, furniture
, and automobiles. According note, a prototype test made for Patek Philippe
in the late 1950’s and was never retailed. The watch is in beautiful
condition and comes with box and paper. I had very close-up pictures taken
to show every detail. The watch looks perfect to the regular eye, in other
words, it looks better in person than it does in these close-up photos. If
you want something truly special I believe this is it. A watch maker took
apart the watch for pictures and assured me - me the watch is in fine
running condition and that the dial is original and not being restored. Case
, dial, movement signed. He also informed me that the winding wheel is worn
and should be replaced. Please note this. If anyone has a winding wheel for
this model I would like to hear from you. I will consider serious offers.
Questions please email before bidding. I will accept payment by bank wire
with an email confirmation within 24 hours of close of auction. If you
cannot complete in this way please do not bid. The watch will not be shipped
until we receive clear funds in our family account. No exceptions. The
watch will be lovingly sent via Fed X or UPS overnight fully insured and the
tracking number will be provided immediately after shipment. Our hope is to
make a new owner very happy. If confirmation of wired funds is not received
in 24 hours of close I retain the right to void the transaction. Thank you
[5] This description was supplemented by a series of 12
thumbnail photographs that could be expanded by anyone viewing this
advertisement. The photographs showed the watch, complete and disassembled,
along with the “paper” mentioned in the description. The photos of the
watch in its disassembled state showed the dial face, the back of the
movement or clockworks, and the inside of the back case.
[6] The eBay account identified the vendor as “Stillwater891”.
[7] Dr. Hartmann lives in Germany. He saw this advertisement and
was interested – he says he was quite excited. Dr. Hartmann had been
studying and collecting watches for 30 years, including having bought
perhaps twenty Patek Philippe watches, and had an extensive library of books
relating to different watch manufacturers. Dr. Hartmann’s excitement was
caused in part because he believed the watch to be an unusually rare model
from a premium manufacturer. To his knowledge, only six similar watches had
been available at auctions internationally in the previous 15 years. Dr.
Hartmann was also intrigued because to his knowledge the six similar watches
had all been in yellow gold, and this one, in rose gold, had never before
appeared in an auction or sale.
[8] The eBay advertisement indicated that the watch on offer
could be purchased immediately for $65,000 USD (hereinafter all sums in US
dollars) or, in the alternative, an interested party might make an offer. Dr
. Hartmann’s knowledge of the market for rare Patek Philippe watches told
him that the price sought was in a reasonable range for such an item. Within
an hour, he posted an offer of $45,000 together with a message to the
vendor through the eBay system indicating that he was a serious buyer,
excited about the watch, and would like a phone number and address so that
he could speak personally with the seller.
[9] Dr. Hartmann testified that he wanted more information about
the history of the watch, such as where it came from, who had owned it,
where it was purchased and when it was purchased. He also wanted, he said,
to get a “good feeling” before he transferred $50,000 to a seller he did
not know, 5,000 miles away.
[10] By an email reply, Dr. Hartmann received a telephone number, an
address and the name Wendy McKerness.
[11] Dr. Hartmann telephoned the number given and spoke with the
defendant, Christopher Fulton. Dr. Hartmann testified that he was curious as
to why he was speaking to Mr. Fulton when the seller was shown as Ms.
McKerness. Dr. Hartmann testified that Mr. Fulton told him that the watch
was a piece that had been in the family for 40 years, that it had belonged
to his mother’s former partner, and that the watch had emotional
significance to his mother.
[12] Dr. Hartmann went on to say that Mr. Fulton told him that “we
” had decided to sell the watch and that he was handling it for his mother
because his mother was not familiar with eBay.
[13] Dr. Hartmann says that he asked Mr. Fulton how he could be sure
about the authenticity of the watch and that Mr. Fulton told him that the
watch came with an original manufacturer’s certificate and repeated that
the watch had been in his family’s possession for 40 years.
[14] Dr. Hartmann investigated the address he had been given through
the internet and saw that it related to a nice house in West Vancouver. He
wanted to speak with Ms. McKerness before he offered to complete the sale.
He says that his offer of $45,000 was not accepted, that Mr. Fulton told him
that he had other offers of $50,000 but his mother would prefer to know
that the watch was in the hands of a collector rather than a dealer because
of her emotional attachment to the watch.
[15] Dr. Hartmann says he tried three times to speak to Ms.
McKerness before he succeeded. He says that she confirmed that the watch
belonged to her former partner who had been a physician, but that she could
not give any more information as she did not know when or where her former
partner had bought the watch. Dr. Hartmann increased his offer to $50,000
through the eBay system and his offer was accepted the evening of April 6,
2008. Almost immediately, Dr. Hartmann received a message through eBay
congratulating him on his purchase and instructing him to wire $50,150 to a
bank account in the name of the defendant Wendy McKerness. That message
ended, “Thank you. Wendy McKerness.”
[16] Dr. Hartmann did not wish to have the watch shipped to him in
Germany, but instead asked that the watch be shipped to his brother-in-law
in Chicago, Illinois.
[17] Dr. Hartmann arranged for the requested wire transfer of the
purchase price, and Mr. Fulton shipped the watch to Dr. Hartmann’s brother-
in-law in Chicago from a FedEx agent in Point Roberts, Washington, about
April 11, 2008.
[18] At some point thereafter, Dr. Hartmann’s brother-in-law
travelled to Germany and took with him the watch, box, paper, etc., that Dr.
Hartmann had purchased. It appears that the brother-in-law wore the watch
on his wrist when he entered Germany, a fact from which the defendants infer
that some form of duty or tax was improperly avoided.
[19] Before he physically received the watch from his brother-in-law
, Dr. Hartmann began to inquire about it. He was prompted to do so by an
email from a third party recommending that he send the watch to the
manufacturer for inspection, that he would not like what he would hear. Dr.
Hartmann contacted Mr. Albert, who he understood to be its designer. On
April 17, 2008, Dr. Hartmann sent some pictures of his newly-acquired watch
to Mr. Albert by email. He received a reply on April 18, and on April 19, Dr
. Hartmann wrote back to Mr. Albert in part:
I did not exspect (sic) that you could answer all of these questions.
Nevertheless I Feen (sic) feel very happy about out (sic) communication and
the information you were able to give me. I will contact Patek Philippe but
I know that the (sic) will Not reveal the number of produced pieces. Do you
know if the Former case maker Markowski is stillen (sic) Geneva may be I
could contact him. With Best regards Oliver Hartmann [Spelling and grammar
may be explained by translation from German.]
[20] When Dr. Hartmann took delivery of the watch from his brother-
in-law, he disassembled it and took detailed photographs. On May 1, 2008, he
contacted Mrs. Hartung, an archives research associate at Patek Philippe,
by email. He said in part:
Dear Mrs. Hartung!
I do hope that you are doing well and again I would like to thank you very
much for your last assistance (Abstract as of February 2008)!
Today I would like to ask another question. I desperately need your kind
assistance again..…
For a high purchase price I bought the following watch overseas:
Reference 3413 Red (Rose) gold
Factory number: 852288 (Caliber 8’“85)
I am attaching some photographic details of this watch.
I find it strange that the case shows no number, is this related to the fact
that this watch is a prototype?
At the time of my purchase I had absolutely no doubt, as the watch has an
original face and canister and also comes with an old sale certificate. In
addition the seller assured me and I had no doubts not to believe her, that
this had been the watch of her late husband (a Canadian cardiologist) who
had owned this watch for more than 40 years.
Following the respective literature, reference #3413 had never been serially
manufactured, but had been a prototype following the design of Gilbert Adam
(whom I am in contact with).
(please refer to the literature such as Huber and Banberry, Patek Philippe
wristwatches, page 148, page 242)
Following my information so far only six pieces with reference number 3413
have appeared in auctions (among others works: 783890, 796466, 783892,
783893, 781…)
All these pieces had been in yellow gold and not in pink gold as this watch.
To make sure everything is in order, I now need to take a look at your
records and I would appreciate a short intermediary report very much!
In addition I would like to authorize you to deduct your charges for an
Abstract of Archives to my credit card. ...
…
Please let me know by way of short e mail information if you discover that
something is just not right.
[21] Dr. Hartmann received a rather terse reply on the 13th of May
2008 from Mrs. Hartung and, as a result, asked his brother-in-law in Chicago
to telephone the defendants to request a refund of the purchase price.
[22] Dr. Hartmann followed up on May 17, 2008, with either a letter
or an email (it is not clear) to both defendants in which he asserts that
the watch is not authentic but an imitation.
[23] In that message Dr. Hartmann asserts:
The examination by the manufacturer determined that the movement (and
certificate - if authentic) belongs to a completely different watch. Patek
Philippe never built the case of the watch; hence the watch is a worthless
imitation. For these reason it is self-explanatory that the purchase
contract is void.
[24] Mr. Fulton replied May 20, 2008, asserting that they had sold
the watch with the information that was available and acted in good faith,
that the three?day period for return had expired, asserting the watch was
worth what the plaintiff had paid for it and that the sale was neither
voidable nor reversible.
[25] Dr. Hartmann relies upon the opinion of Mr. Stefan Muser whose
qualifications to give an opinion on the authenticity of Patek Philippe
watches were established in evidence.
[26] Mr. Muser described his task as follows:
The objective is to determine if this watch is without any doubt an
authentic and original watch – in this case a prototype – made by or for
the manufacturer Patek Philippe and to determine the value of the watch.
[27] As part of his facts and assumptions, Mr. Muser states:
(e) On or about May 1, 2008, Dr. Hartmann sent detailed photos of the
movement, casing dial and certificate to the attention of Marguerite
Hartung, Archives Research Associate at Patek Philippe.
(f) Marguerite Hartung of Patek Philippe advised Dr. Hartmann that
the components of the watch as shown on the photographs and as described did
not belong together. Further, the case was not manufractured (sic) by Patek
Philippe.
[28] The second of these assumptions bears further consideration.
Counsel accepted that two paragraphs of Mr. Muser’s opinion should be
deleted from the last page: one related to the authenticity of the
certificate that accompanied the watch, as beyond Mr. Muser’s
qualifications; and the second related to the authenticity of correspondence
between the Patek Philippe archives (Mrs. Hartung) and Dr. Hartmann. That
second deleted paragraph also asserts that the correspondence confirms Mr.
Muser’s opinion and ends by asserting that Patek Philippe never built the
watch in question, or ordered it to be built as a prototype.
[29] Does the deletion of this paragraph affect the assumed facts
set out in (f), above, and if it does, what does that do to the weight to be
given Mr. Muser’s opinion?
[30] An expert may rely on information the expert considers reliable
. That permits an expert to have recourse to relevant literature in their
field of expertise, without a party having to prove in evidence the
literature on which the expert relies (Mazur v. Lucas, 2010 BCCA 473 at para
. 40).
[31] That is not the same as saying that an expert may, by assuming
as true a fact asserted by a third party, relieve a party of the burden of
proving that fact. If an expert relies on an assumption in arriving at an
opinion, and that assumption is not proved in evidence, the weight to be
given the expert’s opinion may be lessened.
[32] In this case I have no admissible evidence from Patek Philippe.
The email correspondence purporting to originate from Mrs. Hartung is not a
business record, as it has not been shown to comply with s. 42 of the
Evidence Act, R.S.B.C. 1996, c. 124.
[33] While Dr. Hartmann’s side of the correspondence may be
admissible as a declaration against interest, it is not admissible to
bolster or supplement his evidence at trial.
[34] With that in mind, I set out material portions of Mr. Muser’s
opinion:
1. In order to check for authenticity of an old Patek Philippe watch
, the watch has to be disassembled from the case and the dial. Then the
individual components have to be assessed with regard to their measurements,
the finish, the case punches and engravings. For further assessment it is
possible to use comparisons of archived material of the Patek Philippe
company. Specific importance is given to numbers for the movement and the
case. Every authentic Patek Philippe watch has these numbers punched into
the housing and engraved into the movement. Only the archives of the Patek
Philippe company in Geneva has possesses (sic) this and additional
information to each and every watch manufactured since 1851. The correct
combination (does the movement belong to a specific case) can only be
confirmed by the headquarters of Patek Philippe in Geneva by requesting
information from their archives. Such a request can only be executed by
providing the 2 corresponding numbers. In case a movement and housing number
dont (sic) belong together Patek Philippe will not authenticate the watch
nor will Patek Philippe disclose the correct number pair to prevent
forgeries. In the case that over time a movement or housing have to be
replaced by Patek Philippe, the company will make a note into the archives
hence authenticating the new number pair.
Equally important are also the letters (Punze) embossed in the bottom of the
case. The external casing manufacturers who manually manufactured [the]
case under contract for Patek Philippe - have their own signature punched in
the housings, which resembles a small hammer symbol containing a one to
three digit identifying the individual housing manufacturers.
2. After the watch under dispute was disassembled into the upper and
lower and bottom of the case, the movement and the dial removed, each
component was individually examined. The case was examined for its
dimensions, the process of manufacture, the quality of the case and for the
embossing. Additionally the accompanying case was compared to other Patek
Philippe certificates from the time era made available to the examiner. The
archives manager Mrs. Marguerite Hartung also audited the correspondence
between the Patek Philippe archives.
3) There is absolutely no difference between the markings of a
prototype test watch made for Patek Philippe and a production model. The
prototype watches were just produced in very limited numbers. They were
signed, numbered and registered at the Patek Philippe achrive (sic), exactly
like the regular production models.
4) Results of the examination: the watch in question is without any
doubt a forgery. The movement is a type that has never been used in this
type (line) of watch. The dial had been altered in order to mount it onto
the wrong movement. The housing is a low quality forgery. It was never
manufactured under the order of Patek Philippe. It is not an original case
manufactured manually and is not from the time era and without authentic
autographs. The case displays the wrong dimensions and is a casting instead
of being manually assembled and a complete digit for the case as well as the
important embossing are missing - as for example the autograph of the
housing maker.
The existing autograph and the gold embossing are forgeries and measure
incorrect dimensions.
[Two paragraphs deleted.]
At the moment six original watches of this type are known worldwide all of
which were made with yellow gold. All were numbered, registered with there (
sic) numbers at Patek Philippe archive. And all there (sic) cases were made
by a certain casemaker who signed them with his signature.
As the watch is a forgery, its value is only that of the used raw materials.
This watch can not be sold and no specialized auctioneer will accept it for
auction after careful inspection.
[35] Dr. Hartmann argues that the watch was represented as an
authentic Patek Philippe wristwatch worth the asking price of $65,000 and
that the plaintiff is entitled to an authentic Patek Philippe watch worth at
least the $50,000 that he paid for it, if not more. Further, Dr. Hartmann
argues that the defendants represented that a certificate of origin
accompanied the watch; that the watch had been in the defendants’ family
for 40 years; that the defendants preferred to sell the watch to the
plaintiff rather than a dealer. Dr. Hartmann says that the defendants had
knowledge that he lacked (putting them in a position of advantage over him),
and that the representations set out above were untrue, inaccurate and
misleading and that the defendants acted negligently in making these
representations without verifying their accuracy and without regard for
their consequences.
[36] Whether the watch is an authentic Patek Philippe is an
interesting question, the answer to which, depending on the depth of
analysis, might approach the philosophical. It appears from the evidence
that Patek Philippe manufactured all of the components except the case,
although the Patek Philippe components were not necessarily intended to be
assembled together. What is relevant for these parties, however, is whether
what was delivered corresponded to the representations made.
[37] Dr. Hartmann says he was told there was a certificate of origin
with the watch, based on the words “… the watch comes with … paper” and
the photograph of a document entitled “CERTIFICATE D’ORIGINE ET DE
GARANTIE” that formed part of the eBay offering. Dr. Hartmann received the
paper he saw in the photograph, and having agreed to withdraw that portion
of Mr. Muser’s opinion questioning the authenticity of that document, he
has no complaint that he did not get what was represented as to the paper.
[38] Apparently, when a Patek Philippe watch is first sold at retail
, a notation stating the place and date of the sale is entered onto the
certificate. The document in this case did not bear such notation, and that
was not only apparent on the photograph of the document that formed part of
the eBay offering, but the description of the watch clearly stated that it
had never sold at the retail level.
[39] As to the allegations that the defendants told Dr. Hartmann the
watch had been in the family for 40 years, and had belonged to Ms.
McKerness’s late partner, I find that this is an amalgam of the written
eBay listing, which states that the watch “Came from a family member’s 40
year collection of finest mid-Century art” and Dr. Hartmann’s telephone
conversation with the defendants in which he says he was told the family
member was Ms. McKerness’s former partner. Neither defendant recalled
enough about their telephone conversations with Dr. Hartmann to credibly
refute his assertions. I accept that Dr. Hartmann was told this. I accept
that the watch had probably come to Mr. Fulton in a box of miscellaneous
items that had belonged to his grandfather, and that was delivered by his
estranged father with little or no discussion or explanation. Mr. Fulton
says he recalls from his childhood that his grandfather, who lived in the
United States, had eclectic tastes and many possessions.
[40] Dr. Hartmann argued that these representations, which he called
a “backstory”, were of great importance to his decision to go ahead with
the purchase. I am not persuaded that these statements as to the provenance
of the watch were material factors inducing Dr. Hartmann to enter into the
purchase contract, nor that they were terms of the contract. While the claim
the watch had come from Ms. McKerness’s former partner was untrue, that
embellishment I find was immaterial.
[41] Returning to the assertion that the watch is not a genuine
Patek Philippe as represented, the description provided sufficient warning
that this might be the case where it describes the watch as a “prototype
test” model, and then points out that the watch was never sold at retail.
This latter point will be further developed in the discussion of the Sale of
Goods Act, R.S.B.C. 1996, c. 410, issues.
[42] In any event, I find that Dr. Hartmann did not rely on the
representations to the extent that he now argues. Dr. Hartmann was a
sophisticated and knowledgeable purchaser. He believed he was bidding on a
very rare item, and, what is even more significant, that this particular
watch differed from the other six examples he knew of in that this one had a
case of rose gold instead of yellow gold.
[43] Dr. Hartmann argues that the watch was sold by description,
that the defendants as sellers dealt in goods of that description, and that
the watch was not of merchantable quality as required by s. 18(b) of the
Sale of Goods Act, which reads:
18. Subject to this and any other Act, there is no implied warranty or
condition as to the quality or fitness for any particular purpose of goods
supplied under a contract of sale or lease, except as follows:
…
(b) if goods are bought by description from a seller or lessor who
deals in goods of that description, whether the seller or lessor is the
manufacturer or not, there is an implied condition that the goods are of
merchantable quality; but if the buyer or lessee has examined the goods
there is no implied condition as regards defects that the examination ought
to have revealed;
[44] As to the Sale of Goods Act argument, I find that the watch was
sold by description. Dr. Hartmann must also establish that the defendants,
or either of them, dealt in goods of that description. The evidence does not
disclose the defendant, Ms. McKerness, dealt in goods of that or indeed any
other description, at least by way of auction or other sales through eBay.
[45] As to the defendant Mr. Fulton, the evidence is that he had
sold other items on eBay. Mr. Fulton described himself as a self-employed
collector who had sold or brokered expensive items, and he had sold between
50 and 90 items through his mother’s eBay account.
[46] This evidence falls short of establishing that Mr. Fulton’s
sale activities were substantially or even significantly comprised of the
sale of goods of the description involved in this sale, antique watches or
items loosely related to antique watches.
[47] I am not persuaded that Mr. Fulton, as the seller, “deals in
goods of that description” (emphasis added).
[48] If I am wrong in that, I turn to deal with whether the goods
were of merchantable quality.
[49] Dr. Hartmann relies on two decisions of the House of Lords, the
first, Henry Kendall & Sons (a firm) v. William Lillico & Sons Ltd. and
others, [1968] 2 All E.R. 444, and B.S. Brown & Son Ltd. v. Craiks Ltd., [
1970] 1 All E.R. 823. In the former decision, Lord Reid refined an earlier
interpretation of s. 14 of the English equivalent of the British Columbia s.
18(2) when he said at p. 451:
The amended version would be “What sub-s (2) now means by ‘merchantable
quality’ is that the goods in the form in which they were tendered were of
no use for any purpose for which goods which complied with the description
under which these goods were sold would normally be used, and hence were not
saleable under that description.” This is an objective test: “were of no
use for any purpose ...” must mean “would not have been used by a
reasonable man for any purpose ...”.
[50] Dr. Hartmann points to the reasoning in B.S. Brown & Son Ltd.
where the test of merchantable quality is considered in terms of the
difference in price between the goods supplied and the goods described.
Where goods are capable of being used for more than one purpose, and where
the different purposes might command different prices, whether the goods
sold meet the test of merchantability should not be determined solely by
comparing the price paid to the price at which the lowest quality goods
capable of being used for one of the purposes meeting the description would
fetch.
[51] In B.S. Brown & Son Ltd., the impact of a price differential is
put in this way at 828:
If the difference in price is substantial so as to indicate that the goods
would only be sold at a ‘throw-away-price’, then that may indicate that
the goods were not of merchantable quality.
[52] Mr. Muser has said that the value of the watch is “... only
that of the used raw materials. This watch can not be sold and no
specialized auctioneer will accept it for auction after careful inspection.”
[53] Mr. Muser’s opinion has two bases to it. First, he assesses
individual components of the watch, as he puts it, “with regard to their
measurements, the finish, the case punches and engravings.” Next, he relies
upon the position taken by the Patek Philippe archives through Mrs. Hartung
and information provided by Mrs. Hartung.
[54] With respect to the latter basis, there is no direct evidence
from Patek Philippe about this watch. The email from Mrs. Hartung to Dr.
Hartmann is admissible only to establish Dr. Hartmann’s understanding, or
to explain his subsequent actions, but not to prove the watch’s
authenticity. To the extent that Mr. Muser’s opinion depends upon
information that he obtained from Mrs. Hartung or anyone else at Patek
Philippe, or to the extent that he relies upon documents such as those
obtained by Dr. Hartmann from Mrs. Hartung, the weight to be given to Mr.
Muser’s opinion is lessened by the failure to prove the Patek Philippe
evidence.
[55] However, Mr. Muser’s opinion goes further to state that the
movement in the watch in question is a type that has never been used in the
type of watch Dr. Hartmann bought, that the dial had been altered in order
to mount it onto “the wrong movement,” and that the “housing is a low
quality forgery” that was not manufactured under the order of Patek
Philippe. In part, he says that the housing lacks authentic autographs and
displays the wrong dimensions and is a casting instead of being assembled
manually. He concludes by saying that “a complete digit”, which I
understand to be the case number that he thinks ought to be there, as well
as important embossing that includes the autograph of the housing maker, are
missing.
[56] That there was not a case number was readily visible from the
photographs that Dr. Hartmann saw before he made his initial bid. Given his
knowledge and experience in collecting Patek Philippe watches, the
significance of this should have been obvious to him.
[57] On the other hand, it would not have been apparent from the
photographs that the dial had been altered, or that it was mounted onto “
the wrong movement”. It is not clear whether a sophisticated collector such
as Dr. Hartmann would have known that the movement bearing the number he
could see from the photographs had ever been used in the type of watch he
was buying.
[58] Mr. Muser’s evidence suffers a bit because of its conclusory
nature. He has no doubt that the watch is a forgery, and says why – the
movement has not been used in this line of watch, the dial has been altered
to fit it to the wrong movement, and the case is a low quality forgery. He
explains only the last statement, and leaves it to the reader to accept or
reject the first two, with no real basis on which to decide which course to
adopt.
[59] Counsel relied heavily on Mr. Muser’s third statement which
reads;
3) There is absolutely no difference between the markings of a
prototype test watch made for Patek Philippe and a production model. The
prototype watches were just produced in very limited numbers. They were
signed, numbered and registered at the Patek Philippe achrive (sic), exactly
like the regular production models.
[60] In cross-examination Mr. Muser denied having referred to a test
watch until this passage was put to him.
[61] In considering Mr. Muser’s opinion as a whole, both written
and oral, it appears that his dismissal of this watch is heavily influenced
by what he has been told, and what he understands from experience, about the
position taken by the Patek Philippe archives concerning this particular
watch. He said that if one cannot obtain from Patek Philippe a certificate
or abstract concerning a particular watch, he and others consider the watch
a fraud and a forgery.
[62] This last statement requires elaboration. According to Dr.
Hartmann, as confirmed by Mr. Muser, there are at least two levels of
authentication possible from Patek Philippe. One is called an abstract, and
to obtain it, an applicant must supply at least a movement number and a case
number to the archivist. If the numbers match the Patek Philippe records as
having been combined in the same watch, the archives will issue an abstract
to that effect.
[63] The significance of the abstract to this action is found in the
evidence of Dr. Hartmann. In his message to the defendants of May 17, 2008,
after stating that that the watch was an imitation, Dr. Hartmann said: “
This was confirmed by the manufacturer Patek Philippe in Geneva Switzerland
and can be presented in writing.” When asked in cross-examination where
Patek Philippe had confirmed that the watch was an imitation, he replied
that without such an abstract, one cannot be sure that the watch is an
authentic Patek Philippe.
[64] Another document available from Patek Philippe, according to Dr
. Hartmann, is something he described as a document of authenticity. To
obtain that one has to physically take a watch to Patek Philippe, presumably
to be examined for authenticity. There is no evidence that was done.
[65] Even if there were direct evidence from Patek Philippe that it
disowned this watch, that would not be determinative, as the description
clearly stated that it was not just a prototype, but a test watch, that had
never been sold at retail. Further, the description stated that the watch
had been made for Patek Philippe, not by Patek Philippe.
[66] The law does not protect people from improvident bargains. This
watch sufficiently corresponded to the description the defendants gave it
that I do not find that it could not be used for any purpose related to its
description, nor that it lacked merchantable quality.
[67] It seems that Mr. Muser and Dr. Hartmann both value the watch
according to whether Patek Philippe will issue an abstract, something which
I infer Patek Philippe will do only if it has itself assembled the watch
with a movement and a case recorded as having been combined in that watch.
[68] That was not how the watch was described in the eBay listing. I
do not find on the evidence that it was a condition of this sale that an
abstract or other confirmation of authenticity could be obtained from Patek
Philippe.
[69] The case was not argued on the basis of an implied warranty of
fitness for a particular purpose, such as might have attached if the
transaction had concerned the sale to Dr. Hartmann as a collector of genuine
rare Patek Philippe watches of a watch for which Patek Philippe would issue
an abstract. While it was known to the defendants that Dr. Hartmann was a
collector, and it could reasonably be inferred that both parties to the
transaction knew he wished to add this watch to his collection, Dr. Hartmann
has not shown that he relied on the defendants’ skill or judgment (see:
Kobelt Manufacturing Co. Ltd. v. Pacific Rim Engineered Products (1987) Ltd.
, 2011 BCSC 224 at paras. 60-63). As well, I have already concluded that it
was not in the course of either defendant’s business to supply goods of
this description.
[70] On balance then, Dr. Hartmann has failed to make out his case
and his action is dismissed with costs to the defendants.
“R.T.C. Johnston, J.”
The Honourable Mr. Justice Johnston | d*b
发帖数: 21830 | 2 各位发表点见解：
骗子卖给医生5万刀的假货，医生起诉骗子，骗子赢了官司。5万刀。呵呵 | m*r
发帖数: 37612 | 3 法官保护了美国骗子
【在 d*b 的大作中提到】
: 各位发表点见解：
: 骗子卖给医生5万刀的假货，医生起诉骗子，骗子赢了官司。5万刀。呵呵
| d****z
发帖数: 9761 | 4 这个不是美国的官司啊，是加拿大，不要指望加拿大的司法系统，及其变态 | d**j
发帖数: 23329 | 5 赖昌星不是就是加拿大的吗？
【在 d****z 的大作中提到】
: 这个不是美国的官司啊，是加拿大，不要指望加拿大的司法系统，及其变态
| h*****n
发帖数: 2446 | | n*****n
发帖数: 3123 | 7 co 求
【在 h*****n 的大作中提到】
: 求摘要
|
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