Porter v. Wertz

68 A.D.2d 141, 416 N.Y.S.2d 254 (1979)

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Nature of the Case

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Facts

Porter (P) owned a collection of artwork. He sold one painting to Wertz. Part of the purchase price of which was paid in notes. After the first sale, P loaned a second painting to D while Wertz decided whether he wanted to buy it. The first note which was payable on the first painting was dishonored. P attempted to recover the second painting from him but was unsuccessful. P later discovered that the person with whom he had been dealing was not Wertz, but someone by the name of VonMaker, who had a criminal record for check theft, among other things. P notified the FBI of his dealings with VonMaker and had his attorney contact VonMaker's attorney. The two parties executed an agreement which recited that the second painting was on loan to one of VonMaker's clients, and that, within 90 days, VonMaker would either return the painting or pay for it. In the event that VonMaker defaulted on this obligation, the agreement provided that P would be entitled to possession of a third painting which was being held in escrow by VonMaker's attorney. At the time the agreement was made, unbeknownst to P, VonMaker had already sold the painting to Feigan (D). When P sued to recover the painting, D asserted the affirmative defenses of statutory estoppel and equitable estoppel. The lower court found the statutory estoppel defense to be inapplicable, but sustained the equitable estoppel defense and dismissed the complaint. P appeals.