Saturday, May 16, 2009

When a Garage Sale Bargain Goes Awry

Legally speaking . . .

In an unusual 2008 court decision, a judge denied the claim of a British Columbia woman to keep all that her late mother had bought for five dollars at a garage sale … but he awarded her possession of part of the job lot, an extremely rare and valuable antique Swedish coin.

Most of us have our favourite stories about buying antiques, often centering upon how we were able to turn a handsome profit on eBay as a result of picking up a little treasure “for a song” at a weekend yard sale; or an account of when the auctioneer kept on piling things into that cardboard box full of junk until he added what we’d secreting been eyeing, and our one dollar bid sealed the sale. But we would be hard-pressed to top the tale of the 1632 King Gustav II Adolph gold ducat coin and its ultimate guardian, Stephanie Manning, the plaintiff in Manning v. Algard Estate. The case was decided by the British Columbia Supreme Court just last August.

While driving her mother, Marina Ovsenek, to a cancer treatment centre in 2000, Ms. Manning stopped at a garage sale. Ms. Ovsenek often went to such sales. On this occasion she bought a box containing a brooch and five gold-coloured coins for five dollars. Until Ms. Ovsenek’s death in 2004, the contents were kept in a room full of painting supplies, assorted gardening and cook books, costume jewellery and other trinkets purchased at similar sales. In 2005, Ms. Manning’s father invited his daughter to choose what she wanted from the “painting room,” so she chose what she liked, which included the five coins.

After looking at the coins closely, Ms. Manning noticed the old dates on them, and portraits of “old-fashioned people,” so she did some internet investigation. She learned that they might be Swedish antique coins, and if so worth tens of thousands of dollars. An acquaintance, acting as her representative, contacted a coin museum in Sweden in the course of making inquiries. Shortly thereafter the West Vancouver police confiscated the coins from the acquaintance and advised that they had been stolen.

Klas-Olof Algard was a Swedish coin collector. He moved to West Vancouver in 1987. In October, 1994, he reported to police that a briefcase containing some of his coins had been stolen at a tailor’s shop. He gave police additional information about the loss of his satchel, as well as a lengthy recorded and transcribed statement on November 16, 1994. On October 7, 2005, after the coins had been seized from Ms. Manning’s agent, he gave police another statement. In March, 2006, after the coins had been returned to him, Mr. Algard died of heart failure. Therefore, the court case was between Ms. Manning who wanted her coins back, alleging that they had been purchased legally by her mother and then gifted to her by her father, and Mr. Algard’s estate, which contended that Mr. Algard never voluntarily gave up ownership of the treasures.

The proceeding focused on two issues. First, which if either of the two main statements given by The Deceased to the police should be accepted by the court as evidence. If neither was accepted, the case would be over since the Estate would not be able to prove a loss. If at least one was accepted, the second issue would have to be decided, that being whether Ms. Manning or the Algard Estate had better legal title to the coins.

Regarding the evidentiary issue, there were inconsistent accounts in the various reports given to the police by Mr. Algard, relating to the number of coins (ranging from four to seven), and whether they had been lost or stolen. Just as important was the fact that since Mr. Algard did not survive long enough to give evidence at trial, the only evidence would have to be statements he gave to the police. Aside from the conflict in their content there were other issues upon which the court had to rule relating to the reliability of the two contentious declarations, to ensure that procedural fairness prevailed. They included the statements not being given under oath; the inability of the plaintiff’s lawyer to cross-examine on their veracity; Mr. Algard’s potential motive to not be entirely truthful; and the potential for bias against Ms. Manning.

After hearing argument from counsel for each side, the court decided that the November, 1994 statement would be accepted into evidence, but not the October, 2005 statement.

Regarding the second matter, who had a better claim to the coins, the case was a classic. The court had to resolve the conflict between two principles, protection of property (favouring the Estate), and protection of commercial transactions (the purchase of the coins at the garage sale). The judge noted common law principles enunciated over the years in both Canada and the United Kingdom, and British Columbia legislation. The position of Ms. Manning was that her mother was a bona fide purchaser for value without notice, meaning that she had purchased the coins in good faith, with no knowledge that they had been lost or stolen. The principle which prevailed, however, was that a finder of lost or stolen (but not abandoned) goods acquires a right to retain them, which can be exercised against all but the true owner. In this case the true owner was the Estate.

Then why has the case gained such notoriety since its release last summer? You’ll recall that the court decided that the 1994 statement was admissible, but not the others, in particular the 2005 statement given by Mr. Algard to the police after they had recovered the coins, some ten years after the loss. In 1994, shortly after the briefcase of coins had been inadvertently left behind in the course of Mr. Algard running errands, he stated that four described coins had gone missing. In the 2005 statement, five coins were claimed to have been lost, this time including the 1632 Gustav II Adolph ducat. It’s not difficult to understand why a declaration made so many years after a loss would be excluded from evidence, where there is already a comprehensive statement made shortly after the loss. With the 2004, and not the 2005, statement accepted, the only evidence before the court was that four coins that belonged to Mr. Algard had been lost.

While it is certainly possible to infer under all of the circumstances that the fifth coin must also have been lost, there was nothing in the evidence enabling the court to infer that the coin was owned by Mr. Algard. The Estate was not able to prove that Mr. Algard had title to the coin, so its claim against the fifth coin failed. Ms. Manning’s possessory title to the rare 1632 Swedish coin was affirmed, and since no one could ever likely come forward with a better claim to the coin, she was effectively granted ownership of it. A just decision? I suppose that’s open for debate. To my thinking, if you avail yourself to the courts and the wisdom of their interpretation of law and evidence, then you should accept a well reasoned decision as constituting justice done. Fate worked in favour of the Estate when Ms. Manning’s representative made those inquiries. Ms. Manning didn’t do too badly either, given her mother’s five dollar garage sale purchase.

- Alvin Starkman, M.A., LL.B., Oaxaca, Mexico 
Alvin Starkman is a licensee of The Law Society of Upper Canada. However, this article is not intended to be and should not be relied upon as constituting legal advice or opinion. Alvin and Arlene, former Toronto residents and collectors of Canadiana, moved to Mexico in 2004. They operate Casa Machaya Oaxaca Bed & Breakfast.


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