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CLARE KREMER v. JANET FLEISHER GALLERY (10/28/83)

filed: October 28, 1983.

CLARE KREMER, APPELLANT,
v.
JANET FLEISHER GALLERY, INC.



No. 587 Philadelphia, 1981, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Civil Division, at No. 1099 February Term, 1977

COUNSEL

Steven E. Angstreich, Philadelphia, for appellant.

Richard C. Unger, Jr., Philadelphia, for appellee.

Cercone, President Judge, and Spaeth, Hester, Brosky, Wieand, Beck and Johnson, JJ. Wieand, J., filed a concurring opinion in which Johnson, J., joined.

Author: Brosky

[ 320 Pa. Super. Page 387]

This appeal is from judgment on the verdict. Appellant sought damages for the sale of her paintings at a price below their alleged value. Appellee sought, and obtained, a verdict on its counterclaim. Appellant raises five issues for our review: First, that the trial court erred in precluding appellant from introducing evidence on the value of the res, two paintings. Second, that it was error to allow the introduction of hearsay documentary evidence. Third, that an adverse inference against appellant should not have been allowed regarding appellant's failure to call a certain witness. Fourth, that an expert witness should not have given testimony based upon a false hypothetical and without proper foundation. Fifth, that the charge was faulty in neglecting to charge on applicable principles of agency law. We find that a new trial is required on the basis of issues one and five, above.

The relevant facts are as follows:

In October, 1974, Kremer engaged Fleisher's services to sell a number of paintings. Twenty-two paintings were subsequently delivered to Fleisher's gallery, where they were photographed and stored. Fleisher billed Kremer for expenses of photography, storage, insurance and a prior appraisal of twelve of the paints, but this bill was never paid. In January, 1976, the parties met to discuss the bill and the unsold paintings and agreed that one or two of the

[ 320 Pa. Super. Page 388]

    paintings should be auctioned off in order to test the market for the paintings. Proceeds from the sale were to be applied to the unpaid bill. It was agreed that the auction was to take place in the third floor gallery at the auction house and two paintings were shipped from Fleisher's marked for sale from that gallery. The paintings, however, were auctioned from the first floor gallery, where lower quality artwork was sold. The paintings brought a total of $800.00 at auction: $550.00 for one painting; $250.00 for the other. Kremer's suit sought damages for Fleisher's negligence in allowing the paintings to be sold for a price she considered to be less than their true value. Fleisher denied liability and countersued for the excess of Kremer's outstanding bill over the sum received through sale of the paintings.

I. Value of the Paintings.

The first issue involves the court not allowing appellant to introduce three separate types of evidence regarding the value of the paintings. The court below wrote in its opinion that: "This question was rendered moot by the verdict finding in effect that plaintiff authorized the sales and hence is not entitled to damages."

Under other factual circumstances, we would agree with this conclusion. This would be because, although exclusion of properly admissible evidence may be grounds for granting a new trial where the exclusion has prejudiced appellant, new trial will not be granted where the evidence would not have affected the verdict.*fn1 Eldridge v. Melcher, 226 Pa. Super. 381, 313 A.2d 750 (1973). Thus, when the jury has returned a verdict for a defendant on the issue of liability, exclusion of evidence of damages is not usually grounds for granting a new trial. Metzler v. Rapho Twp., 26 ...


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