Pelletier v. Eisenberg

A. John Pelletier (plaintiff) was a painter who consigned 10 paintings to an art gallery owned by Jerome and Betty Eisenberg (defendants). Under the consignment agreement, the Eisenbergs would receive a commission of 40 percent of the sale price of the paintings. Nine of the paintings were destroyed in a fire that broke out at the Eisenbergs’ gallery, and the Eisenbergs received money for the paintings under an insurance policy. Pelletier filed a lawsuit in state court against the Eisenbergs for conversion, breach of trust, and destruction of the paintings. At trial, the judge gave the jury instructions explaining that an art gallery was not entitled to receive a commission for artwork that was destroyed and not sold by the gallery. Instead, the artist was entitled to the entire fair market value of the artwork. The jury found that the Eisenbergs had converted the insurance proceeds from the paintings and awarded Pelletier damages according to the fair market value of the paintings. The Eisenbergs moved for a new trial, arguing that the damages that Pelletier was awarded should have been reduced by 40 percent to account for the commission that the Eisenbergs would have received had they sold the paintings. The trial court granted a new trial, explaining that the proper method of calculating Pelletier’s damages was a legal issue to be decided by the judge in the new trial. Pelletier appealed.