Bentley v. Slavik
| Decision Date | 24 June 1987 |
| Docket Number | No. 86-3373.,86-3373. |
| Citation | 663 F. Supp. 736 |
| Parties | Karen BENTLEY, Plaintiff, v. Charles SLAVIK and Rosemary Slavik, Defendants. |
| Court | U.S. District Court — Southern District of Illinois |
Don Cary Collins, Belleville, Ill., for plaintiff.
Melissa Chapman, Granite City, Ill., for defendants.
This cause was tried before the Court, without a jury, on May 26 and 27, 1987. Having heard and considered the evidence and arguments of all parties, the Court makes the following findings of fact and conclusions of law as required by Rule 52(a) of the Fed.R.Civ.P.
Plaintiff, Karen Bentley, is a citizen of the State of Indiana. Defendants, Charles Slavik and Rosemary Slavik, are citizens of the State of Illinois, who reside within the Southern District of Illinois.
During January, 1984, plaintiff observed, on a bulletin board located at Indiana University, a notice which the defendant, Charles Slavik, asked to be placed there. In the notice, Slavik represented that he had for sale an Auguste Sebastien Philippe Bernardel violin made in 1835 with an appraised value ranging from $15,000 to $20,000.
In response to the notice, plaintiff contacted Slavik by telephone to inquire about the violin. During the telephone conversation, Slavik again represented that he had an authentic 1835 Bernardel violin with an appraised value ranging from $15,000 to $20,000, and invited the plaintiff to visit the defendants at their home in Edwardsville, Illinois, to see the violin.
On January 28, 1984, plaintiff travelled to defendants' home, saw the violin, played and inspected it for at least two hours. During the plaintiff's visit, Charles Slavik again represented to the plaintiff that the violin was an authentic 1835 Auguste Sebastien Philippe Bernardel violin, and further showed her Certificate No. 5500 from one Robert Bernard Tipple dated September 21, 1980, which certificate estimated that the violin was an authentic Auguste Sebastien Philippe Bernardel violin, which had a value of $15,000 to $20,000. Tipple, since deceased, was a violin maker, authenticator, and appraiser in Mount Vernon, Illinois.
In reliance upon the representations of Slavik, and the certificate presented by him, plaintiff purchased the violin from defendant, Charles Slavik, for $17,500. At that time, plaintiff paid Charles Slavik $15,000 by check, and agreed to pay the balance of $2,500 by February 15, 1984. The bill of sale signed by Slavik referred to the sale of "One Bernardel A.S.P. Violin." The second payment was made by check dated February 13, 1984, mailed from Indiana. A letter which accompanied the $2,500 check expressed the plaintiff's pleasure with the violin. From the date of purchase until the end of 1985, the plaintiff played the violin for an average of eight hours a day.
Sometime in April of 1985, plaintiff became aware that the violin might not be a genuine work of Auguste Sebastien Philippe Bernardel made in 1835. Shortly after the plaintiff became aware the violin might not be a genuine Bernardel, plaintiff made demand upon Charles Slavik to return the purchase price and offered to return the violin, but Slavik refused to do so. Despite this, the plaintiff continued to play the violin until December of 1985.
During the plaintiff's use of the violin it required serious repair. In November of 1984, the top of the violin was removed, a procedure considered "major surgery" in the bowed-stringed-instrument community. The repair was poorly done, and the violin now has adhesive residue visible on its exterior. At this time, the violin has a crack near the fingerboard and a crack under the chin rest. The neck of the violin was recently broken in transit, although it has since been reattached. Finally, the Court finds from the testimony of Professor R. Kent Perry that the violin has a "buzz" due to either the poor repair or the poor condition of the instrument. The Court finds that the violin is in poorer condition now than it was when purchased by the plaintiff.
Although the defendants presented this evidence of the changed condition of the violin with fervor, they presented a theme without a resolution. No evidence was introduced to establish the extent to which the damage and repairs decreased the value of the violin. By failing to complete the theme, the defendants, in effect, leave the Court to speculate as to the measure of the diminution in the value of the violin and thereby improvise the final passage. The Court must, however, decline this offer.
On the crucial question of authenticity, the plaintiff presented the testimony of Lowell Gene Bearden, and the evidence deposition of Frank Passa, both experts in the authentication and appraisal of violins. Bearden, of St. Louis, learned his craft from his father, and has operated his own violin shop for 24 years, where he has crafted three violins. He is a member of the International Society of Violin and Bow Makers, of which there are fewer than 25 members in this country. Frank Passa, of San Francisco, has operated a violin shop for 56 years, serving mostly members of major symphony orchestras. His skill also came under the tutelege of family members. Passa is also a member of the International Society of Violin and Bow Makers, and founded the American Federation of Violin and Bow Makers. Bearden and Passa, while not members of the academic music community, make their living in part from, and have based their reputations on, their ability to correctly identify, authenticate and appraise violins made centuries ago. These men examined the violin in question, and both asserted unequivocally that the instrument is not a Bernardel. They placed its value at between $750 and $2,000.
As counterpoint, defendants offered the testimony of R. Kent Perry, Ph.D., professor of violin and chamber music at Southern Illinois University — Edwardsville. Professor Perry supplemented his testimony by playing brief excerpts from the classics on the violin in question, thereby both educating and entertaining the Court, as had plaintiff at the conclusion of her testimony. While the evidence presented by Professor Perry was helpful to the Court, it is clear that he is not an expert in the field of authenticating violins.
Additional evidence as to the authenticity of the violin as a Bernardel came in the form of the certificate of authenticity issued by Tipple and introduced as a joint exhibit of the parties. Tipple's certificate was less than compelling; it merely stated that it was his "estimation" the violin was a Bernardel.
Defendants also presented the evidence of Mr. Slavik's daughter, Suzanne von Frasunkiewicz, a concert violinist from Brazil, who testified that she had played the violin on tour, found it to be a fine instrument, and believed it to be a Bernardel. Her belief was primarily based on what she had heard over the years in her father's home, and she admitted that she had had no training or experience in authenticating or appraising violins.
The Court finds the evidence presented by plaintiff on the determinative question of authenticity to be the more credible, and finds from a preponderance of the evidence that the violin is not the work of Auguste Sebastien Phillipe Bernardel, and that its value at the time of sale was $2,000.
Despite this, the Court finds that Charles Slavik neither purposefully nor willfully misrepresented the maker or value of the violin, though he referred to the instrument as a Bernardel both orally and on the Bill of Sale. Slavik is neither an expert on the masters of violins, nor is he in the business, occupation or vocation of selling violins.
The Court further finds that there has been no evidence that defendant, Rosemary Slavik, had any ownership interest in the violin, nor that she played any role in the sale of the violin to plaintiff. In other words, the sale of this violin was not a duet by the defendants, but rather a solo by Charles Slavik.
This Court has diversity jurisdiction over this action pursuant to 28 U.S.C. § 1332. The amount in controversy exceeds $10,000.
In a diversity action, the choice of law rules of the state in which the district court sits are applied. Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); Pittway Corp. v. Lockheed Aircraft Corp., 641 F.2d 524, 526 (7th Cir.1981). In contract cases, the Illinois rule is that the law of the place of execution applies when the contract is to be performed in more than one state. P.S. & E., Inc. v. Selastomer Detroit, Inc., 470 F.2d 125, 127 (7th Cir.1972). Because the second payment from Bentley was made from Indiana, the `place of execution' rule will be followed in this case, and Illinois law will be applied by the Court.
The plaintiff alleges in Count I that there were misrepresentations made by the defendants to the plaintiff in violation of the Illinois Consumer Fraud and Deceptive Business Practices Act, (Consumer Fraud Act), Ill.Rev.Stat. ch. 121½, para. 261-272 (1983). After consideration of the Act and relevant case law, it appears the Consumer Fraud Act does not apply to this dispute. Because there was no purposeful misrepresentation on the part of Charles Slavik, the initial portion of Section 2 of the Act does not apply. Ill.Rev.Stat. ch. 121½, para. 262 (1983). The portion of Section 2 in which the Uniform Deceptive Trade Practices Act (the Uniform Act) is incorporated also does not apply because any alleged violation as described in Section 2 of the Uniform Act must be done by someone "in the course of his business, vocation or occupation...." Ill.Rev.Stat. ch. 121½, para. 312 (1983).
While there appears to be no case law directly on point, courts have interpreted both the Consumer Fraud Act and the Uniform Act as protecting consumers such as Bentley only "against fraud, unfair methods of competition and deceptive business practices." Frahm v. Urkovich, 113 Ill. App.3d 580...
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