Wilson v. Hammer Holdings, Inc., s. 87-1960

• Decision Date: 01 February 1988
• Docket Number: Nos. 87-1960,87-1961,s. 87-1960
• Citation: 850 F.2d 3
• Parties: 6 UCC Rep.Serv.2d 321 Dorothy Ann WILSON, etc., et al., Plaintiffs, Appellants, v. HAMMER HOLDINGS, INC., Defendant, Appellee. Dorothy Ann WILSON, Plaintiff, Appellant, v. HAMMER HOLDINGS, INC., Defendant, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 3

850 F.2d 3

6 UCC Rep.Serv.2d 321

Dorothy Ann WILSON, etc., et al., Plaintiffs, Appellants, v. HAMMER HOLDINGS, INC., Defendant, Appellee.

Dorothy Ann WILSON, Plaintiff, Appellant, v. HAMMER HOLDINGS, INC., Defendant, Appellee.

Nos. 87-1960, 87-1961.

United States Court of Appeals First Circuit.

Heard Feb. 1, 1988.

Decided June 20, 1988.

William Shields with whom Cindy A. O'Connor and Day, Berry & Howard, Boston, Mass., were on brief for plaintiffs, appellants.

Darragh K. Kasakoff with whom Seder & Chandler, Worcester, Mass., was on brief for defendant, appellee.

Before COFFIN, Circuit Judge, ALDRICH, Senior Circuit Judge, and PETTINE, ^* Senior District Judge.

COFFIN, Circuit Judge.

In 1961, appellant Dorothy Wilson and her late husband, John, paid more than $11,000 to the Hammer Galleries for a painting that was expressly guaranteed to be an original work of art by Edouard Vuillard. In 1984, an expert deemed the painting a fake. The district court held that the Wilsons' suit for breach of warranty and negligence, filed in February 1987, was barred by the statute of limitations. We affirm.

I.

When Dorothy and John Wilson purchased the painting entitled "Femme Debout" from the Hammer Galleries in 1961, ¹ they were assured in writing that "[t]he authenticity of t[his] picture is guaranteed." Twenty-four years later, they had the painting examined by an expert in preparation for selling it. The expert determined that the painting was not by the French artist Vuillard, and he refused to authenticate it. The Wilsons returned the painting to Hammer and, on February 13, 1987, filed this action seeking damages for breach of warranty and negligence. ²

The district court granted summary judgment for Hammer on the ground that the Wilsons had failed to file their lawsuit within the applicable statute of limitations. 671 F.Supp. 94. The court held that an action for breach of a warranty of authenticity accrues at the time of sale of the painting, and that the Wilsons' action therefore was barred by the four-year statute of limitations in Mass.Gen.Laws Ann. ch. 106, Sec. 2-725. The court also concluded that another limitations statute with a different limitations period and accrual method, Mass.Gen.Laws Ann. ch. 106, Sec. 2-318, did not apply to the Wilsons' breach of warranty claim. Finally, the court rejected the Wilsons' attempt to characterize their claim alternatively as a negligence action subject to the timing and method of accrual of the Massachusetts tort statute of limitations, Mass.Gen.Laws Ann. ch. 260, Sec. 2A.

The Wilsons argue on appeal that the district court improperly construed and applied Massachusetts statute of limitations law, and they ask us to find that their action was timely filed. The Wilsons rely on three separate statutory provisions, and we shall discuss each in turn.

II.

The Massachusetts statute of limitations for breach of a sales contract is set out in Mass.Gen.Laws Ann. ch. 106, Sec. 2-725. That section provides that (1) An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued....

(2) A cause of action accrues when the breach occurs, regardless of the aggrieved party's lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery must await the time of such performance the cause of action accrues when the breach is or should have been discovered.

There is no question that the Wilsons' action was untimely under this statute if it accrued at the time they purchased the painting and received the warranty because those events occurred twenty-six years before suit was filed. The Wilsons therefore contend that this case falls within the exception to section 2-725(2), and they argue that their cause of action accrued upon their discovery in 1985 that the painting was not authentic.

The district court found the exception in section 2-725(2) to be inapplicable because Hammer's warranty made no explicit reference to future performance as required by the statute. The Wilsons do not argue that the district court erred in reading the warranty to lack an explicit promise of future performance. Rather, they argue that a warranty of authenticity of a painting necessarily relates to the future condition of the artwork despite the absence of explicit language to that effect, and, for that reason, they claim that the exception in section 2-725(2) should apply to them.

Section 2-725(2) refers to a warranty of "future performance," and so the Wilsons' theory depends first on extending the concept of a "performance" to a painting. They concede that paintings, unlike consumer goods like automobiles and washing machines, generally are not purchased based on how they "perform" or "function." They suggest, however, that a painting "performs" "by being what it [is] represented to be," Lawson v. The London Arts Group, 708 F.2d 226, 228 (6th Cir.1983). In this case, they say, "Femme Debout" could "perform" only by being an authentic Vuillard.

Accepting at least for the sake of argument that a painting does "perform" by being genuine, the question then becomes whether Hammer's express warranty of authenticity not only guaranteed the present "being" of the painting as an authentic Vuillard but also extended, as required by section 2-725(2), to the future existence of the painting as a Vuillard. On this point, the Wilsons argue that because the authenticity of a painting does not change over time, Hammer's warranty "necessarily guaranteed the present and future existence of the Painting as an authentic Vuillard." (Emphasis in original.) Therefore, they contend, explicit words warranting future performance would be superfluous in this context.

The Wilsons' argument is persuasive if one's goal is to furnish protection for art buyers equivalent to that provided expressly by section 2-725(2) to purchasers of other types of goods. Art buyers almost certainly would fail to secure a separate explicit warranty of "future performance" because a warranty that promises authenticity "now and at all times in the future" would be redundant. Therefore, it is appealing to argue that, in the circumstances of this case, the exception in section 2-725(2) should be triggered by any warranty of authenticity, which must be understood as at least an implicit promise of future performance.

Our difficulty with this argument, however, is that it asks us to ignore the literal language of the statute requiring an explicit promise of future performance. The Wilsons argue essentially that because the statutory exception's requirement of an explicit prospective warranty does not make sense in the context of the sale of paintings, we should dispense with that requirement. We are reluctant, however, to waive the specific eligibility requirements established by the legislature for what, it must be remembered, is an exception to the general limitations rule. ³

Even accepting that Hammer's warranty implicitly promised future performance, the Wilsons' situation simply does not fit within the literal boundaries of the exception carved out by the Massachusetts legislature to the standard four-year statute of limitations for breach of contract actions. See Stumler v. Ferry-Morse Seed Co., 644 F.2d 667, 671 (7th Cir.1981) ("The mere expectation, however reasonable, that due to the type of product involved the statute of limitations on the warranty claims would not begin to run until discovery of the defect rather than upon delivery does not fit such a claim into the exception to the general rule.") (language reprinted from district court opinion.) Our feeling is that if there is to be an exception to the requirements of the exception, it should be up to Massachusetts lawmakers to design it. ⁴

We need not finally decide this issue, ⁵ however, because even if we were to accept the Wilsons' argument that Hammer's warranty necessarily extended to future performance of the painting, and thus met the prospective warranty requirement of section 2-725(2), we nevertheless would conclude that their action is time-barred. The statute also requires that discovery of the breach "must await" the time of such future performance. That is not the case here. Because of the static nature of authenticity, the Wilsons were no less capable of discovering that "Femme Debout" was a fake at the time of purchase than they were at a later time.

The Wilsons, however, argue that it is commercially unreasonable and unfair to insist upon a strict interpretation of the discovery element of section 2-725(2) in the context of art sales. They contend that art buyers usually pay for the expertise of an art dealer when purchasing a work of art, with the expectation that the professional will stand behind the promise of authenticity. Thus, they argue, art purchasers should not be required to pay a second expert to verify the work of the first one in order to preserve their rights to sue for breach of warranty at some later time. Therefore, when an art buyer has no reason at the time of purchase to question the authenticity of the painting--perhaps because it was sold by a reputable, professional dealer--the Wilsons would require only that the breach await, rather than necessarily await, future performance. In this case, the Wilsons had no reason to doubt the authenticity of "Femme Debout" until they prepared to sell the painting in 1985.

Again, the Wilsons' arguments are not without some appeal. But they are made more appropriately to the Massachusetts legislature than to us. We have no doubt that the legislators who crafted section 2-725 gave no thought to the concept of a "performing" work of art. The present statutory language undoubtedly was designed for instances in which goods contain a latent defect at the time of purchase that does not cause the goods to break down...