ART DEALER'S APPEAL.

New Zealand Herald, Volume LI, Issue 15746, 22 October 1914, Page 3

ART DEALER'S APPEAL.

EXHIBITION TRANSACTION.

JUDGMENT FOR COMMISSIONERS.

Judgment was delivered yesterday by His Honor Mr. Justice Cooper in the case in which J. M. Schapiro, an art dealer (Mr. A. Brown), appealed against the magistrate's decision in an action brought against him by the Auckland AxhiDiiion commissioners (.Mr. M. U. AlcUregurj lor a percentage ol the money received as tiie result ot me disposal oi pictures by an art union, 'lhe appeal was dismissed. Mr. brown suggested wiat it was possiDla wiat, the matter would be taken to the Court of Appeal. His Honor remarked, in the course of his judgment, that the questions to be deemed might be — «iced to three: (1) What was the contract between the two parties ; " ('/) it it included an agreement by the appellant to pay to the respondents commission at the rate of 10 per cent, on all ex hi ted pictures sold during the Exhibition was it enforceable, no by-laws having been made by the" commissioners and confirmed by the Governor-in-Council under section 7 of the Exhibitions Act, 1910; (3) if it was enforceable and included such an agreement, # was the disposal of pictures by the appellant by lottery, and the receipt by the appellant ot £503 16s 6d, the proceeds of the lottery,' and the delivery of pictures to the holders c? the winning ' tickets, a sale of such pictures within the meaning o£ the contract between the appellant and the respondents. After traversing the evidence Mr. Justice Cooper said that in his opinion the fair construction of the letters passing between appellant and the respondents,was that the former agreed to pay, in addition to the £70 for sps,ce, a commission "of 10 per cent, on all sales, and that the statement in Mr- Holmes's letter, "with the exception that he will have to pay 10 per cent-, on all sales, and will have to cover the wall at his own ex- v pense." included sales of any of the pictures as well as of any of the other exhibits. The words " and will have to cover the wall at .his own expense," were a distinct reference to the pictures. The contract between the parties was, therefore, a special one at a special quotation. The second question. His Honor held, must be answered in the affirmative. .Pictures; Held in Trust. J Dealing with the question as to whether the disposal of the pictures by a lottery conducted by tile appellant was "a "sale" of the Pictures within the meaning of tho contract between the parties, His Honor said the so-called art union was not an art union within the meaning of section 46 of the Gaming Act, 1910. .It was a lottery rendered legal by the license issued by the Minister for Internal Affairs. Had the appellant sold a total number of the tickets aggregating the full sum of 2350 guineas he would have received . in cash the total aggregate nominal value of the pictures; and he would then have held the pictures in trust for the whole body of subscribers, the right of the subscribers to any individual picture to be determined by chance. "In mv opinion." Mr. , Justice Cooper continued, "the legal effect of such a transaction would have been that the total number of pictures would have been sold to the subscribers as a bodv they having collectively supplied the nurchase money. The lottery, however, was not fully subscribed. Only between 12,000 and 13,000 tickets were sold. ~ The appellant, therefore, had two courses -■ open to him: (1) To return the money received : and (2) to notify the actual sub- " scribers that he' would raffle among them pictures to the nominal value of the aggregate amount received for tickets actually sold. It was this second course that he . adopted. When, therefore, the actual subscribers agreed, as it must be presumed they did, to the lottery proceeding with a. limited number of pictures aggregating m nominal value the total amount subscribed. the appellant, in fact, sold to this limited number of subscribers the limited number of _pictures, and 'undertook to doliver the pictures to such of the subscribers who held the winning tickets. Construction of Word " Sale." "The property in the pictures was no longer his. Flo had parted with it for money. As trustee for the subscribers ho" held the pictures and when the drawing took -lace the individual holders of th* winnmsr tickets became entitled to the delivery of the particular pictures. It is not unreasonable to construe- the term 'sale' as meaning a disposal of exhibited poods during the Exhibition for their value in money, and this is what the appellant did. He disposed of pictures which he valued at £603 for the equivalent amount in money, and he delivered the Pictures to the persons entitled to receive them." In dismissing the appeal His Honor allowed the respondents £10 10s costs.