Christopher Fulton's Controversial Sale of Second Watch

BK NOTES: While Christopher Fulton won this case in regards to the sale of the second controversial watch, his mother Wendy Woodhouse-McKenness is in court with him in 2011, when Fulton wrote in his book The Inheritance that she died while he was in prison. Why would he lie about the date of his mother's death? There must be a reason. 

IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:	Hartmann v. McKerness,
	2011 BCSC 927

Date: 20110711

Docket: S086381

Registry: Vancouver

Between:

Dr. Oliver Hartmann

Plaintiff

And:

Wendy McKerness, aka Wendy Woodhouse-McKerness
and Christopher Fulton, aka Christopher McKerness

Defendants

Before: The Honourable Mr. Justice Johnston

Reasons for Judgment

Counsel for the Plaintiff:	L.N. Robinson and S. Hellmann
Appearing In Person:	C. Fulton
Appearing In Person:	W. McKerness
Place and Date of Trial:	Vancouver, B.C. November 22-23, 26 and 29, 2010 and March 3-4, 2011
Place and Date of Judgment:	Vancouver, B.C. July 11, 2011

 

[1]             In this action, Dr. Hartmann claims damages for breach of contract on the basis that he was induced to pay $50,000 for a wristwatch represented by the defendants to be a genuine Patek Philippe watch, and the watch he received was not genuine. He pleads that the representation as to authenticity was a term of the contract, the breach of which was fundamental. He says other representations made by the defendants induced him to enter into the purchase contract, and those representations were made negligently, and were false, inaccurate, and misleading as to authenticity.

[2]             Although not pleaded, the plaintiff argued that the sale was by description, and the watch was not of merchantable quality.

[3]             The defendants respond by saying that Dr. Hartmann received what was described, and that, in any event, if someone is liable to Dr. Hartmann, which the defendants deny, the liability is that of the defendant Christopher Fulton and not his mother, Wendy McKerness.

[4]             The dispute arises out of an internet sale through eBay. In April 2008, Dr. Hartmann saw a watch offered for sale. The watch was described as:

PATEK PHILIPPE RARE MODEL ROSE PINK GOLD VINTAGE 1950’S

Patek Philippe man’s rare model wristwatch in 18 carat rose/pink gold. Came from family members 40 year collection of finest mid-Century art, furniture, and automobiles. According note, a prototype test made for Patek Philippe in the late 1950’s and was never retailed. The watch is in beautiful condition and comes with box and paper. I had very close-up pictures taken to show every detail. The watch looks perfect to the regular eye, in other words, it looks better in person than it does in these close-up photos. If you want something truly special I believe this is it. A watch maker took apart the watch for pictures and assured me - me the watch is in fine running condition and that the dial is original and not being restored. Case, dial, movement signed. He also informed me that the winding wheel is worn and should be replaced. Please note this. If anyone has a winding wheel for this model I would like to hear from you. I will consider serious offers. Questions please email before bidding. I will accept payment by bank wire with an email confirmation within 24 hours of close of auction. If you cannot complete in this way please do not bid. The watch will not be shipped until we receive clear funds in our family account. No exceptions. The watch will be lovingly sent via Fed X or UPS overnight fully insured and the tracking number will be provided immediately after shipment. Our hope is to make a new owner very happy. If confirmation of wired funds is not received in 24 hours of close I retain the right to void the transaction. Thank you

[5]             This description was supplemented by a series of 12 thumbnail photographs that could be expanded by anyone viewing this advertisement. The photographs showed the watch, complete and disassembled, along with the “paper” mentioned in the description. The photos of the watch in its disassembled state showed the dial face, the back of the movement or clockworks, and the inside of the back case.

[6]             The eBay account identified the vendor as “Stillwater891”.

[7]             Dr. Hartmann lives in Germany. He saw this advertisement and was interested – he says he was quite excited. Dr. Hartmann had been studying and collecting watches for 30 years, including having bought perhaps twenty Patek Philippe watches, and had an extensive library of books relating to different watch manufacturers. Dr. Hartmann’s excitement was caused in part because he believed the watch to be an unusually rare model from a premium manufacturer. To his knowledge, only six similar watches had been available at auctions internationally in the previous 15 years. Dr. Hartmann was also intrigued because to his knowledge the six similar watches had all been in yellow gold, and this one, in rose gold, had never before appeared in an auction or sale.

[8]             The eBay advertisement indicated that the watch on offer could be purchased immediately for $65,000 USD (hereinafter all sums in US dollars) or, in the alternative, an interested party might make an offer. Dr. Hartmann’s knowledge of the market for rare Patek Philippe watches told him that the price sought was in a reasonable range for such an item. Within an hour, he posted an offer of $45,000 together with a message to the vendor through the eBay system indicating that he was a serious buyer, excited about the watch, and would like a phone number and address so that he could speak personally with the seller.

[9]             Dr. Hartmann testified that he wanted more information about the history of the watch, such as where it came from, who had owned it, where it was purchased and when it was purchased. He also wanted, he said, to get a “good feeling” before he transferred $50,000 to a seller he did not know, 5,000 miles away.

[10]         By an email reply, Dr. Hartmann received a telephone number, an address and the name Wendy McKerness.

[11]         Dr. Hartmann telephoned the number given and spoke with the defendant, Christopher Fulton. Dr. Hartmann testified that he was curious as to why he was speaking to Mr. Fulton when the seller was shown as Ms. McKerness. Dr. Hartmann testified that Mr. Fulton told him that the watch was a piece that had been in the family for 40 years, that it had belonged to his mother’s former partner, and that the watch had emotional significance to his mother.

[12]         Dr. Hartmann went on to say that Mr. Fulton told him that “we” had decided to sell the watch and that he was handling it for his mother because his mother was not familiar with eBay.

[13]         Dr. Hartmann says that he asked Mr. Fulton how he could be sure about the authenticity of the watch and that Mr. Fulton told him that the watch came with an original manufacturer’s certificate and repeated that the watch had been in his family’s possession for 40 years.

[14]         Dr. Hartmann investigated the address he had been given through the internet and saw that it related to a nice house in West Vancouver. He wanted to speak with Ms. McKerness before he offered to complete the sale. He says that his offer of $45,000 was not accepted, that Mr. Fulton told him that he had other offers of $50,000 but his mother would prefer to know that the watch was in the hands of a collector rather than a dealer because of her emotional attachment to the watch.

[15]         Dr. Hartmann says he tried three times to speak to Ms. McKerness before he succeeded. He says that she confirmed that the watch belonged to her former partner who had been a physician, but that she could not give any more information as she did not know when or where her former partner had bought the watch. Dr. Hartmann increased his offer to $50,000 through the eBay system and his offer was accepted the evening of April 6, 2008. Almost immediately, Dr. Hartmann received a message through eBay congratulating him on his purchase and instructing him to wire $50,150 to a bank account in the name of the defendant Wendy McKerness. That message ended, “Thank you. Wendy McKerness.”

[16]         Dr. Hartmann did not wish to have the watch shipped to him in Germany, but instead asked that the watch be shipped to his brother-in-law in Chicago, Illinois.

[17]         Dr. Hartmann arranged for the requested wire transfer of the purchase price, and Mr. Fulton shipped the watch to Dr. Hartmann’s brother-in-law in Chicago from a FedEx agent in Point Roberts, Washington, about April 11, 2008.

[18]         At some point thereafter, Dr. Hartmann’s brother-in-law travelled to Germany and took with him the watch, box, paper, etc., that Dr. Hartmann had purchased. It appears that the brother-in-law wore the watch on his wrist when he entered Germany, a fact from which the defendants infer that some form of duty or tax was improperly avoided.

[19]         Before he physically received the watch from his brother-in-law, Dr. Hartmann began to inquire about it. He was prompted to do so by an email from a third party recommending that he send the watch to the manufacturer for inspection, that he would not like what he would hear. Dr. Hartmann contacted Mr. Albert, who he understood to be its designer. On April 17, 2008, Dr. Hartmann sent some pictures of his newly-acquired watch to Mr. Albert by email. He received a reply on April 18, and on April 19, Dr. Hartmann wrote back to Mr. Albert in part:

I did not exspect (sic) that you could answer all of these questions. Nevertheless I Feen (sic) feel very happy about out (sic) communication and the information you were able to give me. I will contact Patek Philippe but I know that the (sic) will Not reveal the number of produced pieces. Do you know if the Former case maker Markowski is stillen (sic) Geneva may be I could contact him. With Best regards Oliver Hartmann [Spelling and grammar may be explained by translation from German.] 

[20]         When Dr. Hartmann took delivery of the watch from his brother-in-law, he disassembled it and took detailed photographs. On May 1, 2008, he contacted Mrs. Hartung, an archives research associate at Patek Philippe, by email. He said in part:

Dear Mrs. Hartung!

I do hope that you are doing well and again I would like to thank you very much for your last assistance (Abstract as of February 2008)!

Today I would like to ask another question. I desperately need your kind assistance again..…

For a high purchase price I bought the following watch overseas:

Reference 3413 Red (Rose) gold

Factory number: 852288 (Caliber 8’“85)

I am attaching some photographic details of this watch.

I find it strange that the case shows no number, is this related to the fact that this watch is a prototype?

At the time of my purchase I had absolutely no doubt, as the watch has an original face and canister and also comes with an old sale certificate. In addition the seller assured me and I had no doubts not to believe her, that this had been the watch of her late husband (a Canadian cardiologist) who had owned this watch for more than 40 years.

Following the respective literature, reference #3413 had never been serially manufactured, but had been a prototype following the design of Gilbert Adam (whom I am in contact with).

(please refer to the literature such as Huber and Banberry, Patek Philippe wristwatches, page 148, page 242)

Following my information so far only six pieces with reference number 3413 have appeared in auctions (among others works: 783890, 796466, 783892, 783893, 781…)

All these pieces had been in yellow gold and not in pink gold as this watch.

To make sure everything is in order, I now need to take a look at your records and I would appreciate a short intermediary report very much!

In addition I would like to authorize you to deduct your charges for an Abstract of Archives to my credit card. ...

…

Please let me know by way of short e mail information if you discover that something is just not right.

[21]         Dr. Hartmann received a rather terse reply on the 13th of May 2008 from Mrs. Hartung and, as a result, asked his brother-in-law in Chicago to telephone the defendants to request a refund of the purchase price.

[22]         Dr. Hartmann followed up on May 17, 2008, with either a letter or an email (it is not clear) to both defendants in which he asserts that the watch is not authentic but an imitation.

[23]         In that message Dr. Hartmann asserts:

The examination by the manufacturer determined that the movement (and certificate - if authentic) belongs to a completely different watch. Patek Philippe never built the case of the watch; hence the watch is a worthless imitation. For these reason it is self-explanatory that the purchase contract is void.

[24]         Mr. Fulton replied May 20, 2008, asserting that they had sold the watch with the information that was available and acted in good faith, that the three‑day period for return had expired, asserting the watch was worth what the plaintiff had paid for it and that the sale was neither voidable nor reversible.

[25]         Dr. Hartmann relies upon the opinion of Mr. Stefan Muser whose qualifications to give an opinion on the authenticity of Patek Philippe watches were established in evidence.

[26]         Mr. Muser described his task as follows:

The objective is to determine if this watch is without any doubt an authentic and original watch – in this case a prototype – made by or for the manufacturer Patek Philippe and to determine the value of the watch.

[27]         As part of his facts and assumptions, Mr. Muser states:

(e)        On or about May 1, 2008, Dr. Hartmann sent detailed photos of the movement, casing dial and certificate to the attention of Marguerite Hartung, Archives Research Associate at Patek Philippe.

(f)         Marguerite Hartung of Patek Philippe advised Dr. Hartmann that the components of the watch as shown on the photographs and as described did not belong together. Further, the case was not manufractured (sic) by Patek Philippe.

[28]         The second of these assumptions bears further consideration. Counsel accepted that two paragraphs of Mr. Muser’s opinion should be deleted from the last page: one related to the authenticity of the certificate that accompanied the watch, as beyond Mr. Muser’s qualifications; and the second related to the authenticity of correspondence between the Patek Philippe archives (Mrs. Hartung) and Dr. Hartmann. That second deleted paragraph also asserts that the correspondence confirms Mr. Muser’s opinion and ends by asserting that Patek Philippe never built the watch in question, or ordered it to be built as a prototype.

[29]         Does the deletion of this paragraph affect the assumed facts set out in (f), above, and if it does, what does that do to the weight to be given Mr. Muser’s opinion?

[30]         An expert may rely on information the expert considers reliable. That permits an expert to have recourse to relevant literature in their field of expertise, without a party having to prove in evidence the literature on which the expert relies (Mazur v. Lucas, 2010 BCCA 473 at para. 40).

[31]         That is not the same as saying that an expert may, by assuming as true a fact asserted by a third party, relieve a party of the burden of proving that fact. If an expert relies on an assumption in arriving at an opinion, and that assumption is not proved in evidence, the weight to be given the expert’s opinion may be lessened.

[32]         In this case I have no admissible evidence from Patek Philippe. The email correspondence purporting to originate from Mrs. Hartung is not a business record, as it has not been shown to comply with s. 42 of the Evidence Act, R.S.B.C. 1996, c. 124.

[33]         While Dr. Hartmann’s side of the correspondence may be admissible as a declaration against interest, it is not admissible to bolster or supplement his evidence at trial.

[34]         With that in mind, I set out material portions of Mr. Muser’s opinion:

1.         In order to check for authenticity of an old Patek Philippe watch, the watch has to be disassembled from the case and the dial. Then the individual components have to be assessed with regard to their measurements, the finish, the case punches and engravings. For further assessment it is possible to use comparisons of archived material of the Patek Philippe company. Specific importance is given to numbers for the movement and the case. Every authentic Patek Philippe watch has these numbers punched into the housing and engraved into the movement. Only the archives of the Patek Philippe company in Geneva has possesses (sic) this and additional information to each and every watch manufactured since 1851. The correct combination (does the movement belong to a specific case) can only be confirmed by the headquarters of Patek Philippe in Geneva by requesting information from their archives. Such a request can only be executed by providing the 2 corresponding numbers. In case a movement and housing number dont (sic) belong together Patek Philippe will not authenticate the watch nor will Patek Philippe disclose the correct number pair to prevent forgeries. In the case that over time a movement or housing have to be replaced by Patek Philippe, the company will make a note into the archives hence authenticating the new number pair.

            Equally important are also the letters (Punze) embossed in the bottom of the case. The external casing manufacturers who manually manufactured [the] case under contract for Patek Philippe - have their own signature punched in the housings, which resembles a small hammer symbol containing a one to three digit identifying the individual housing manufacturers.

2.         After the watch under dispute was disassembled into the upper and lower and bottom of the case, the movement and the dial removed, each component was individually examined. The case was examined for its dimensions, the process of manufacture, the quality of the case and for the embossing. Additionally the accompanying case was compared to other Patek Philippe certificates from the time era made available to the examiner. The archives manager Mrs. Marguerite Hartung also audited the correspondence between the Patek Philippe archives.

3)         There is absolutely no difference between the markings of a prototype test watch made for Patek Philippe and a production model. The prototype watches were just produced in very limited numbers. They were signed, numbered and registered at the Patek Philippe achrive (sic), exactly like the regular production models.

4)         Results of the examination: the watch in question is without any doubt a forgery. The movement is a type that has never been used in this type (line) of watch. The dial had been altered in order to mount it onto the wrong movement. The housing is a low quality forgery. It was never manufactured under the order of Patek Philippe. It is not an original case manufactured manually and is not from the time era and without authentic autographs. The case displays the wrong dimensions and is a casting instead of being manually assembled and a complete digit for the case as well as the important embossing are missing - as for example the autograph of the housing maker.

            The existing autograph and the gold embossing are forgeries and measure incorrect dimensions.

            [Two paragraphs deleted.]

            At the moment six original watches of this type are known worldwide all of which were made with yellow gold. All were numbered, registered with there (sic) numbers at Patek Philippe archive. And all there (sic) cases were made by a certain casemaker who signed them with his signature.

                        As the watch is a forgery, its value is only that of the used raw materials. This watch can not be sold and no specialized auctioneer will accept it for auction after careful inspection.

[35]         Dr. Hartmann argues that the watch was represented as an authentic Patek Philippe wristwatch worth the asking price of $65,000 and that the plaintiff is entitled to an authentic Patek Philippe watch worth at least the $50,000 that he paid for it, if not more. Further, Dr. Hartmann argues that the defendants represented that a certificate of origin accompanied the watch; that the watch had been in the defendants’ family for 40 years; that the defendants preferred to sell the watch to the plaintiff rather than a dealer. Dr. Hartmann says that the defendants had knowledge that he lacked (putting them in a position of advantage over him), and that the representations set out above were untrue, inaccurate and misleading and that the defendants acted negligently in making these representations without verifying their accuracy and without regard for their consequences.

[36]         Whether the watch is an authentic Patek Philippe is an interesting question, the answer to which, depending on the depth of analysis, might approach the philosophical. It appears from the evidence that Patek Philippe manufactured all of the components except the case, although the Patek Philippe components were not necessarily intended to be assembled together. What is relevant for these parties, however, is whether what was delivered corresponded to the representations made.

[37]         Dr. Hartmann says he was told there was a certificate of origin with the watch, based on the words “… the watch comes with … paper” and the photograph of a document entitled “CERTIFICATE D’ORIGINE ET DE GARANTIE” that formed part of the eBay offering. Dr. Hartmann received the paper he saw in the photograph, and having agreed to withdraw that portion of Mr. Muser’s opinion questioning the authenticity of that document, he has no complaint that he did not get what was represented as to the paper.

[38]         Apparently, when a Patek Philippe watch is first sold at retail, a notation stating the place and date of the sale is entered onto the certificate. The document in this case did not bear such notation, and that was not only apparent on the photograph of the document that formed part of the eBay offering, but the description of the watch clearly stated that it had never sold at the retail level.

[39]         As to the allegations that the defendants told Dr. Hartmann the watch had been in the family for 40 years, and had belonged to Ms. McKerness’s late partner, I find that this is an amalgam of the written eBay listing, which states that the watch “Came from a family member’s 40 year collection of finest mid-Century art” and Dr. Hartmann’s telephone conversation with the defendants in which he says he was told the family member was Ms. McKerness’s former partner. Neither defendant recalled enough about their telephone conversations with Dr. Hartmann to credibly refute his assertions. I accept that Dr. Hartmann was told this. I accept that the watch had probably come to Mr. Fulton in a box of miscellaneous items that had belonged to his grandfather, and that was delivered by his estranged father with little or no discussion or explanation. Mr. Fulton says he recalls from his childhood that his grandfather, who lived in the United States, had eclectic tastes and many possessions.

[40]         Dr. Hartmann argued that these representations, which he called a “backstory”, were of great importance to his decision to go ahead with the purchase. I am not persuaded that these statements as to the provenance of the watch were material factors inducing Dr. Hartmann to enter into the purchase contract, nor that they were terms of the contract. While the claim the watch had come from Ms. McKerness’s former partner was untrue, that embellishment I find was immaterial.

[41]         Returning to the assertion that the watch is not a genuine Patek Philippe as represented, the description provided sufficient warning that this might be the case where it describes the watch as a “prototype test” model, and then points out that the watch was never sold at retail. This latter point will be further developed in the discussion of the Sale of Goods Act, R.S.B.C. 1996, c. 410, issues.

[42]         In any event, I find that Dr. Hartmann did not rely on the representations to the extent that he now argues. Dr. Hartmann was a sophisticated and knowledgeable purchaser. He believed he was bidding on a very rare item, and, what is even more significant, that this particular watch differed from the other six examples he knew of in that this one had a case of rose gold instead of yellow gold.

[43]         Dr. Hartmann argues that the watch was sold by description, that the defendants as sellers dealt in goods of that description, and that the watch was not of merchantable quality as required by s. 18(b) of the Sale of Goods Act, which reads:

18.       Subject to this and any other Act, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract of sale or lease, except as follows:
            …

(b)        if goods are bought by description from a seller or lessor who deals in goods of that description, whether the seller or lessor is the manufacturer or not, there is an implied condition that the goods are of merchantable quality; but if the buyer or lessee has examined the goods there is no implied condition as regards defects that the examination ought to have revealed;

[44]         As to the Sale of Goods Act argument, I find that the watch was sold by description. Dr. Hartmann must also establish that the defendants, or either of them, dealt in goods of that description. The evidence does not disclose the defendant, Ms. McKerness, dealt in goods of that or indeed any other description, at least by way of auction or other sales through eBay.

[45]         As to the defendant Mr. Fulton, the evidence is that he had sold other items on eBay. Mr. Fulton described himself as a self-employed collector who had sold or brokered expensive items, and he had sold between 50 and 90 items through his mother’s eBay account.

[46]         This evidence falls short of establishing that Mr. Fulton’s sale activities were substantially or even significantly comprised of the sale of goods of the description involved in this sale, antique watches or items loosely related to antique watches.

[47]         I am not persuaded that Mr. Fulton, as the seller, “deals in goods of that description” (emphasis added).

[48]         If I am wrong in that, I turn to deal with whether the goods were of merchantable quality.

[49]         Dr. Hartmann relies on two decisions of the House of Lords, the first, Henry Kendall & Sons (a firm) v. William Lillico & Sons Ltd. and others,[1968] 2 All E.R. 444, and B.S. Brown & Son Ltd. v. Craiks Ltd., [1970] 1 All E.R. 823. In the former decision, Lord Reid refined an earlier interpretation of s. 14 of the English equivalent of the British Columbia s. 18(2) when he said at p. 451:

The amended version would be “What sub-s (2) now means by ‘merchantable quality’ is that the goods in the form in which they were tendered were of no use for any purpose for which goods which complied with the description under which these goods were sold would normally be used, and hence were not saleable under that description.” This is an objective test: “were of no use for any purpose ...” must mean “would not have been used by a reasonable man for any purpose ...”.

[50]         Dr. Hartmann points to the reasoning in B.S. Brown & Son Ltd. where the test of merchantable quality is considered in terms of the difference in price between the goods supplied and the goods described. Where goods are capable of being used for more than one purpose, and where the different purposes might command different prices, whether the goods sold meet the test of merchantability should not be determined solely by comparing the price paid to the price at which the lowest quality goods capable of being used for one of the purposes meeting the description would fetch.

[51]         In B.S. Brown & Son Ltd., the impact of a price differential is put in this way at 828:

If the difference in price is substantial so as to indicate that the goods would only be sold at a ‘throw-away-price’, then that may indicate that the goods were not of merchantable quality.

[52]         Mr. Muser has said that the value of the watch is “... only that of the used raw materials. This watch can not be sold and no specialized auctioneer will accept it for auction after careful inspection.”

[53]         Mr. Muser’s opinion has two bases to it. First, he assesses individual components of the watch, as he puts it, “with regard to their measurements, the finish, the case punches and engravings.” Next, he relies upon the position taken by the Patek Philippe archives through Mrs. Hartung and information provided by Mrs. Hartung.

[54]         With respect to the latter basis, there is no direct evidence from Patek Philippe about this watch. The email from Mrs. Hartung to Dr. Hartmann is admissible only to establish Dr. Hartmann’s understanding, or to explain his subsequent actions, but not to prove the watch’s authenticity. To the extent that Mr. Muser’s opinion depends upon information that he obtained from Mrs. Hartung or anyone else at Patek Philippe, or to the extent that he relies upon documents such as those obtained by Dr. Hartmann from Mrs. Hartung, the weight to be given to Mr. Muser’s opinion is lessened by the failure to prove the Patek Philippe evidence.

[55]         However, Mr. Muser’s opinion goes further to state that the movement in the watch in question is a type that has never been used in the type of watch Dr. Hartmann bought, that the dial had been altered in order to mount it onto “the wrong movement,” and that the “housing is a low quality forgery” that was not manufactured under the order of Patek Philippe. In part, he says that the housing lacks authentic autographs and displays the wrong dimensions and is a casting instead of being assembled manually. He concludes by saying that “a complete digit”, which I understand to be the case number that he thinks ought to be there, as well as important embossing that includes the autograph of the housing maker, are missing.

[56]         That there was not a case number was readily visible from the photographs that Dr. Hartmann saw before he made his initial bid. Given his knowledge and experience in collecting Patek Philippe watches, the significance of this should have been obvious to him.

[57]         On the other hand, it would not have been apparent from the photographs that the dial had been altered, or that it was mounted onto “the wrong movement”. It is not clear whether a sophisticated collector such as Dr. Hartmann would have known that the movement bearing the number he could see from the photographs had ever been used in the type of watch he was buying.

[58]         Mr. Muser’s evidence suffers a bit because of its conclusory nature. He has no doubt that the watch is a forgery, and says why – the movement has not been used in this line of watch, the dial has been altered to fit it to the wrong movement, and the case is a low quality forgery. He explains only the last statement, and leaves it to the reader to accept or reject the first two, with no real basis on which to decide which course to adopt.

[59]         Counsel relied heavily on Mr. Muser’s third statement which reads;

3)         There is absolutely no difference between the markings of a prototype test watch made for Patek Philippe and a production model. The prototype watches were just produced in very limited numbers. They were signed, numbered and registered at the Patek Philippe achrive (sic), exactly like the regular production models.

[60]         In cross-examination Mr. Muser denied having referred to a test watch until this passage was put to him.

[61]         In considering Mr. Muser’s opinion as a whole, both written and oral, it appears that his dismissal of this watch is heavily influenced by what he has been told, and what he understands from experience, about the position taken by the Patek Philippe archives concerning this particular watch. He said that if one cannot obtain from Patek Philippe a certificate or abstract concerning a particular watch, he and others consider the watch a fraud and a forgery.

[62]         This last statement requires elaboration. According to Dr. Hartmann, as confirmed by Mr. Muser, there are at least two levels of authentication possible from Patek Philippe. One is called an abstract, and to obtain it, an applicant must supply at least a movement number and a case number to the archivist. If the numbers match the Patek Philippe records as having been combined in the same watch, the archives will issue an abstract to that effect.

[63]         The significance of the abstract to this action is found in the evidence of Dr. Hartmann. In his message to the defendants of May 17, 2008, after stating that that the watch was an imitation, Dr. Hartmann said: “This was confirmed by the manufacturer Patek Philippe in Geneva Switzerland and can be presented in writing.” When asked in cross-examination where Patek Philippe had confirmed that the watch was an imitation, he replied that without such an abstract, one cannot be sure that the watch is an authentic Patek Philippe.

[64]         Another document available from Patek Philippe, according to Dr. Hartmann, is something he described as a document of authenticity. To obtain that one has to physically take a watch to Patek Philippe, presumably to be examined for authenticity. There is no evidence that was done.

[65]         Even if there were direct evidence from Patek Philippe that it disowned this watch, that would not be determinative, as the description clearly stated that it was not just a prototype, but a test watch, that had never been sold at retail. Further, the description stated that the watch had been made for Patek Philippe, not byPatek Philippe.

[66]         The law does not protect people from improvident bargains. This watch sufficiently corresponded to the description the defendants gave it that I do not find that it could not be used for any purpose related to its description, nor that it lacked merchantable quality.

[67]         It seems that Mr. Muser and Dr. Hartmann both value the watch according to whether Patek Philippe will issue an abstract, something which I infer Patek Philippe will do only if it has itself assembled the watch with a movement and a case recorded as having been combined in that watch.

[68]         That was not how the watch was described in the eBay listing. I do not find on the evidence that it was a condition of this sale that an abstract or other confirmation of authenticity could be obtained from Patek Philippe.

[69]         The case was not argued on the basis of an implied warranty of fitness for a particular purpose, such as might have attached if the transaction had concerned the sale to Dr. Hartmann as a collector of genuine rare Patek Philippe watches of a watch for which Patek Philippe would issue an abstract. While it was known to the defendants that Dr. Hartmann was a collector, and it could reasonably be inferred that both parties to the transaction knew he wished to add this watch to his collection, Dr. Hartmann has not shown that he relied on the defendants’ skill or judgment (see: Kobelt Manufacturing Co. Ltd. v. Pacific Rim Engineered Products (1987) Ltd., 2011 BCSC 224 at paras. 60-63). As well, I have already concluded that it was not in the course of either defendant’s business to supply goods of this description.

[70]         On balance then, Dr. Hartmann has failed to make out his case and his action is dismissed with costs to the defendants.

                 “R.T.C. Johnston, J.”           

The Honourable Mr. Justice Johnston