McGreal v. Jackie Fine Arts, Inc.

654 P.2d 149, 1982 Wyo. LEXIS 412
CourtWyoming Supreme Court
DecidedDecember 3, 1982
DocketNos. 5700, 5701
StatusPublished

This text of 654 P.2d 149 (McGreal v. Jackie Fine Arts, Inc.) is published on Counsel Stack Legal Research, covering Wyoming Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McGreal v. Jackie Fine Arts, Inc., 654 P.2d 149, 1982 Wyo. LEXIS 412 (Wyo. 1982).

Opinions

ROONEY, Justice.

Appellants-plaintiffs, Austin J. McGreal and Ronald A. Reed, filed separate actions against appellee-defendant, Jackie Fine Arts, Inc., alleging breach of contract and seeking the refund of monies paid appellee for the purchase of art masters1, related copyrights, and the printing of a limited edition2 from the masters. Appellee counterclaimed seeking foreclosure on the liens on the masters and personal deficiency judgments against appellants.

After a trial to the court of Reed’s case, the parties stipulated that the facts there presented were identical in all material respects to the facts to be presented in McGreal’s case and that the judgment in Reed would be dispositive of McGreal’s case. The judgment entered by the trial court dismissed appellants’ complaints, dismissed appellee’s counterclaims for deficiency judgments, and ordered appellants to transfer all right and title to the masters to appellee.

On appeal appellants contend that the trial court erred in finding: (1) that appel-lee did not breach the contracts by failing to deliver the art masters in a timely manner or by failing to perform relative to tax benefits, and (2) that appellee was entitled to the assignment of appellants’ right, title and interest in the art masters.

We affirm.

In late 1978, appellants were introduced to appellee’s program of marketing art masters as a tax shelter. Appellants attended a seminar at which the appellee’s program and. the potential tax benefits of the purchase of an art master were explained. On December 30,1978, each appellant entered into a contract with appellee for the purchase of an art master and each claimed certain tax benefits on his 1978 federal income tax return as a result thereof.

At the time they entered into the contracts, appellants received a “Bill of Sale” for the art masters and an “Assignment of Copyright and Model and Property Release” for the art masters. In 1979, appellants also received letters from appellee notifying them that the testing of the masters had been completed on December 31, 1978, and that the masters were ready and available for the production of the limited editions. However, the art masters were not delivered into the actual possession of the appellants.

In July of 1979, appellants were audited by the Internal Revenue Service and asked to substantiate the depreciation, investment tax credit, etc., claimed as a result of the transaction. After consulting with their accountants, appellants withdrew the questioned claims because they believed they could not provide the requested substantiation. Appellants then notified appellee of their intention to cancel the contracts and requested the return of the amounts paid on them. When appellee failed to return the amounts paid, appellants brought the actions from which these appeals resulted.

BREACH OF CONTRACT

Appellants contend that a delivery of the art masters to appellants in 1978 was of [151]*151critical importance to them with reference to the tax benefits claimed by them in that year. The potential for tax savings was one of the major selling points used by appellee in marketing the program. Appellants contend that actual delivery of the art masters in 1978 was required by the contracts. Appellee contends that only constructive delivery, i.e., delivery to the printer, was required and that such delivery was made.

[150]*150“1.1 ‘Master’ means a photoscreen negative, plate, stone, block, Mylar, transparency, screen, metal or other material from which prints can be made.”
“1.6 ‘Limited Edition’ means original prints produced by or under the supervision of the Artist which are numbered and signed by the Artist.”

[151]*151We have often set forth the standard by which contracts are examined on appeal:

“Our basic purpose in construing or interpreting a contract is to determine the intention and understanding of the parties. [Citations.] If the contract is in writing and the language is clear and unambiguous, the intention is to be secured from the words of the contract. [Citations.] And the contract as a whole should be considered, with each part being read in light of all other parts. [Citations.] The interpretation and construction is done by the court as a matter of law. [Citations.]
“If the contract is ambiguous, resort may be had to extrinsic evidence. [Citations.] An ambiguous contract ‘is an agreement which is obscure in its meaning, because of indefiniteness of expression, or because a double meaning is present.’ [Citation.] Ambiguity justifying extraneous evidence is not generated by the subsequent disagreement of the parties concerning its meaning. [Citation.]” Amoco Production Company v. Stauffer Chemical Company of Wyoming, Wyo., 612 P.2d 463, 465 (1980).
Paragraph 3.4 of the contracts provides: “Seller shall deliver each Master to Purchaser, or to a distributor designated by Purchaser, at the expense of purchaser, not later than the delivery date set forth in Schedule A.”

There is no “delivery” date, as such, on Schedule A. The only date on it is “12-30-78,” inserted on the upper right hand corner. It could be the date of execution, or it could be the date referred to in paragraph 3.4 of the contracts. This potential ambiguity makes it necessary to examine extrinsic evidence in order to determine the intention of the parties with reference to whether or not the delivery of the art master to appellants was to be done constructively or actually.

Paragraph 8.4 of the contracts provides: “8.4 The Purchaser and/or his Advisor has carefully read the Information Memorandum and all exhibits thereto which discuss the nature of the business activities to be conducted by the Purchaser and the elements of risk associated therewith and fully understands their content.”

The referred to information memoranda or offers are detailed. They provide in part:

“Within 15 days after the closing, the Master Artwork will be delivered by the Seller to a printer for the production of the Limited Edition; thereafter, the Master Artwork and the prints will be delivered to the Purchaser or at his direction to a Distributor or gallery. * * * ”

The evidence reflected that the art master would be used by the printer and artist for an indefinite period of time in order to produce the prints. To make prints from the art master, the printer or chromist had to transfer the lines and colors from the art master to the prints. Refinements are made in the product by the artist until he is satisfied that the resulting prints accurately depict the original art work. Only then are the prints made and signed by the artist. They are made in the limited number agreed upon, and they are delivered to appellants for marketing. Appellants’ profits are to result from the sale of the prints.

In these cases, the printing was completed in late 1979. The contemplated process made it impossible to effect actual delivery on December 30, 1978, the date the contracts were entered into and the date contained on Schedule A.

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654 P.2d 149, 1982 Wyo. LEXIS 412, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcgreal-v-jackie-fine-arts-inc-wyo-1982.