Page:Ripley v. Findlay Galleries.pdf/4

 after such sale and reproduction was improper and invalid.

Whether the sale, on April 6, 1942, was authorized, and if authorized just what it conveyed to Goes is to be determined by the construction to be placed upon Findlay’s letter of March 14, 1942, and plaintiff’s reply thereto of March 16, 1942, when considered in the light of the previous arrangement between the parties. It is to be remembered that before the exchange of these letters plaintiff had consigned the painting in question to Findlay and made Findlay his agent for the purpose of sale at the stipulated sum of $300 without express reservation of any kind or character. Then in March, after an unsuccessful effort to sell the paintings, the agent inquired of the artist whether he would be interested in selling any of his water colors for reproduction. While the letter of inquiry refers also to a lithographer who had been doing reproductions for calendars for the Milwaukee Journal, yet we think a fair construction to be placed on the letter is not one limited to the inquiry of whether he would be willing to have his paintings reproduced for the Milwaukee Journal, but rather one of general inquiry of whether the agent Findlay would be authorized to sell any of his water colors for reproduction generally. Plaintiff’s reply two days later saying that “I have no objection to selling one of my pictures, for reproduction, especially if it is well reproduced,” is well nigh unlimited in its authority to the agent, there being no contention that it was not “well reproduced.” The authority to sell had already been vested in the agent several months previously, and even though it may have already possessed sufficient authority to sell for reproduction, as now contended, yet the inquiry of March 14th may in any event be treated as a courteous inquiry of plaintiff for clarification of the scope of the agent’s authority. With the authority already concededly vested in the agent for sale for all purposes except reproduction, plaintiff by his letter of March 16th removes this supposed reservation by most explicit language. It, therefore, seems inescapable that the proper construction to be placed upon these two letters is that Findlay was authorized by plaintiff to sell any of the paintings theretofore consigned even to one who desired to reproduce same and to pass complete title thereto without reservation.

If this be the proper construction to be placed upon the two letters, then the sale to Goes being fully authorized, title to the painting passed and reproduction by Goes was entirely proper. That title to the painting again passed at a later date to Findlay under its contract with Goes is unimportant. The subsequent maneuvering of Mr. Findlay when confronted with a more or less embarrassing situation in his own business by virtue of the misconduct of his employee, followed by his arrangement to purchase the painting from plaintiff for $200 is, likewise, without special significance as Findlay, Inc., at that time owned the painting by virtue of its repurchase from defendant Goes. Findlay was indebted to plaintiff in the sum of $200, but nothing more than a debtor-creditor relation existed between them at that time, insofar as “Three Grouse in Snow” is concerned. Neither do we need to consider the important case of Pushman v. New York Graphic Society, 287 N.Y. 302, 39 N.E.2d 249, or the many other authorities on the question of whether in selling or authorizing the sale of a picture without reservation the reproduction rights are included; or, conversely, whether the reproduction rights follow the sale unless expressly reserved by the artist. There are respectable authorities upon both sides of this much argued and briefed question, but it becomes unimportant in our case, because of our holding of express authority for an unrestricted sale. Neither is the question of custom among artists important in our case for custom, whatever it be, must yield to express authority. Whether Findlay was morally excused by reason of his misinformation or lack of information in his apparent deception of the plaintiff after the sale had been made to Goes is not now material. If title passed as we believe then only an obligation remained for Findlay to remit to plaintiff the sum of $200, the net proceeds of the sales. When Findlay did subsequently pay the sum of $200 to plaintiff although