Take Cover, Sheriff: In Dallas Federal Court, a Suit Over the Sale of a $1.5 Million N.C. Wyeth
[Update at 3:19 p.m. Thursday: After the jump is a lengthy statement from Ira E. Tobolowsky, the attorney who is representing the gallery in the case written about below.]
While we're perusing legal filings, here's an intriguing case filed only yesterday down at the Earle Cabell. It starts back in March 2008, about a year before the New Mexico-based Gerald Peters Gallery shuttered its Dragon Street location due, it said, to a lousy economy. According to the filing that follows, Steve Sell had his eye on one piece in particular: N.C. Wyeth's The Sheriff, painted in 1908. The reason? According to the suit: The Peters gallery had told Sell it appeared on the cover of the August 1, 1908, Saturday Evening Post, and Sell "relied on representations and was lead to believe that by being on the cover of the Saturday Evening Post the painting would have a higher resale value."
And so, on March 12, 2008, Peters invoiced Sell for $1.5 million, which he paid. But more than a year later, according to exhibits filed with the complaint, Sell made a discovery: In an August 14, 2009, e-mail sent to, among others, Peters's art assistant (Ana Archuleta) and his executive assistant (Paige Willingham), he wrote that "I have located a copy of that edition [of The Saturday Evening Post] and while the cover is by N.C. Wyeth it is not my Wyeth. I hope it is on the cover of a different issue, or there could be a problem."
Three days later, Archuleta responded thusly:
I contacted our New York gallery regarding your questions on the cataloguing [sic] of this painting, as it was brought in through them. Going back over our records we found that we catalogued [sic] the painting in January of 2008 based on Allen & Allen's monograph of N.C. Wyeth, titled N.C. Wyeth: The Collected Paintings, Illustrations and Murals. At the time, this was the only published monograph on N.C. Wyeth. By our mistake we merged two different Sheriff paintings by Wyeth. In their book, Allen & Allen list references by publication rather than by title, subject and date. To further complicate things, Allen & Allen has no index, the works are not illustrated, and they do not list dimensions when they are noted by publication. So, finding two listings for The Sheriff, one as a Saturday Evening Post cover and the other a frontispiece for Scribners, it was incorrectly assumed they were the same work, since there were no other specifics listed to indicate otherwise.
In the process of cataloging the work, we did contact The Brandywine Museum, knowing they were planning to publish a catalogue raisonne of Wyeth's work later in 2008, as well as contacting the editor of this catalogue raisonne. They were able to confirm the work's inclusion in the forthcoming catalogue raisonne, but were too involved in the publication to help us or proof our catalog beyond that.
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Indeed, the Brandywine River Museum's website features a considerable history of the piece in question -- when it was done, for how much it was sold and to whom. Says the site, a greeting-card company purchased it for $250, but didn't use it and sold it later to Scribner's Magazine for $150. It would appear in the magazine "solely for its interest and artistic merit, unrelated to a story or article." The Saturday Evening Post's covers website doesn't feature information about this particular cover, but this site reveals the front of the August 1, 1908, edition. It is indeed of a cowboy with a rifle. But it's not Wyeth's Sheriff.
About an hour after Archuleta sent her note, Sell responded, according exhibits filed with the complaint. He wrote: "Whether a mistake or not, it is misrepresentation by both the gallery and the appraiser." He demanded to know how the gallery would "make this right." Later that evening, she responded: The gallery had done its best to "warrant the authenticity," and while it might not have been a Saturday Evening Post cover, "the publication as the frontispiece of Scribner's is itself an accolade for this work." Nevertheless, she offered to take the painting on consignment and see what the gallery could fetch for it.
One day later, Sell responded that he only bought it because of its association with The Post and "will not be put off by someone simply saying the piece is still as valuable." He said he never would have bought the piece had he known the real story behind the work. At which point the correspondence ends, and the litigation begins.
On Thursday afternoon, we received the following statement from the Peters Gallery:
According to Ira E. Tobolowsky, the attorney for Gerald Peters Gallery, Steve Sell, a West Texas oil man turned art investor, is feeling the pains of the economy. In early 2008, Steve Sell, riding high on the price of oil, decided that he wanted to diversify and buy art as an investment. He contacted the Gerald Peters Gallery in Dallas, Texas and asked them to show him quality art.
Sell eventually decided to purchase two works of art, namely: The Sheriff, a painting by the renowned artist, N.C. Wyeth; and Painted Desert by Fremont Ellis. For these two works of art, Mr. Sell paid a total of $1.5 million.
Shortly after making these acquisitions, the market in fine art changed. About the same time, Mr. Sell decided to invest in race cars and to sell The Sheriff. When Mr. Sell could not sell The Sheriff for a profit, he decided on an alternative method to avoid the depressed art market. He decided to sue.
Mr. Sell contends that several weeks before he purchased The Sheriff, the salesperson for the Gerald Peters Gallery in Dallas, Texas had represented that The Sheriff had appeared on both the front page of Scribners magazine and on the cover of The Saturday Evening Post.
The Sheriff is one of the finest paintings by N.C. Wyeth and in the early 1900's The Sheriff had in fact appeared on the front page of the renowned literary publication known as Scribners. In 1908, Wyeth painted two paintings titled The Sheriff -- the painting purchased by Mr. Sell and a lesser quality painting also known as Sheriff. As it was later discovered, it was this lesser quality painting that had appeared on the cover of The Saturday Evening Post.
Mr. Sell filed a lawsuit on December 14, 2010 in Federal Court for breach of contract alleging that he had been damaged $1.5 million because The Sheriff which he purchased had not appeared on the cover of The Saturday Evening Post.
Mr. Sell failed to disclose in his Federal lawsuit that approximately a year ago he had filed virtually the identical lawsuit in a Dallas Court which he dismissed days before filing his lawsuit in Federal Court. Mr. Sell dismissed his State Court action days before the Judge was to consider a motion for summary judgment seeking to have his case thrown out on the grounds that it was without merit.
In the State Court case, it was undisputed that the appearance or non-appearance of The Sheriff on the cover of a monthly publication had no impact on the value of the artwork. It was shown in State Court that the true value of the Wyeth painting was its subject matter with its inherent details, the date of the painting, and the condition of the painting, not whether the painting may or may not have appeared on the cover of a magazine.
Jerry Peters, who was initially sympathetic to Mr. Sell's need to liquidate, offered, for no commission, to sell The Sheriff for Mr. Sell. Mr. Sell, however, rejected Mr. Peters' offer and is now trying to recover his entire investment through a frivolous lawsuit while keeping The Sheriff hanging on his wall.
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