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Being sued for selling "cracked" woodburner.

Post in 'DIY and General non-hearth advice' started by FrankG23, Apr 2, 2011.

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  1. webbie

    webbie Seasoned Moderator Staff Member

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    Me?
    I'd have given her all the money back.....and felt bad about the situation.

    I sell a lot of stuff used - on ebay and elsewhere.

    I usually sell it all as-is, but say "it works fine - and look at my feedback".

    I don't worry about the law. If you do as you would want others to do to you, the solution will become more clear......

    Just like most here, I'm not a lawyer either - but there is such a thing as "implied fitness for merchantability", which basically means that something you sell to accomplish a task should do that task....

    Each situation is different....when I have something which is REALLY beat, maybe like this furnace.....I would have probably noted in the sale ad AND in the bill of sale that it was being sold as scrap......or something to that effect. For instance, I sold some slightly defective chimney extensions I had and clearly told the people I was selling them a piece of "non-combustible decorative building material", not a chimney extension.

    Time is money. Court sucks. If she does not show up the first time, she might have a good excuse....and then you have to go twice! If you don't show, she probably gets the award, but still has to go though trouble to collect it (they can't force money from your pocket in most places without a lot of documents!).....

    Sometimes you have to eat one......

    Other than all the advice here, I would present this on one of the many legal forums around or talk to a friend who is a lawyer (if you have one)...don't pay a dime, because the whole case is too small to hire anyone!

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  2. billb3

    billb3 Minister of Fire

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    I know I'd be at least partially interested in the actual outcome.

    Seems to me if you were given the opportunity to inspect an item for suitability and you didn't fully take an advantage of that inspection capability with an expert and you buy the item anyway the sale is subject to your own determinability of merchantability.
    I can hear judge asking her if she inspected it before she bought it. Over and over again.

    A retailer I can see taking it back.
    Joe Blow down the street selling something as-is where-is? Not so sure.


    Coming up with an "expert" after the sale seems unfortunately late.
    Why not before ?
    Wasn't worth the risk ?
    and now she thinks that risk she took belongs to someone else ?

    I hope she doesn't make too many trips to Vegas or visit the Indians.
  3. BrotherBart

    BrotherBart Hearth.com LLC Mid-Atlantic Division Staff Member

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    If he loses in court I bet we don't hear about it.
  4. nola mike

    nola mike Feeling the Heat

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    You're not responsible for those costs. She's responsible for legal fees, etc. The most she could collect is $400 + court costs (and you get your stove back). And I'm sure you didn't warranty "no cracks" (is that on the bill of sale? is there any proof of that?). You just stated that you didn't think there were any. Go to court and win.
    [EDIT] Realizing this doesn't add much to the thread, but I can't delete it. Consider it deleted in spirit.
  5. REM505

    REM505 New Member

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    Duly noted counsler. Please strike from the record moderator.
  6. Mikey1946

    Mikey1946 New Member

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    If you are the type that welcomes confrontation then I say call her bluff and go to court. First read up on small claims laws and procedures in your state. Don't be intimidated by the subpoena you'll be receiving. The burden of proof in on her as well as you. Prepare carefully for the hearing and remember, no lawyers.

    If confrontation is not to your liking, buy it back from her and move on.
  7. Wade A.

    Wade A. Feeling the Heat

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    Treeburner.....I'm a licensed lawyer who has defended and tried civil suits for 25 years. Listen to me when I tell you that you've gotten a lot of bad advice here, and I won't even begin to try and unravel that for you. Sorry I didn't see your thread sooner. The first thing you'll learn when you tell someone about your legal problems is that that had an uncle/nephew/cousin/boss who was in EXACTLY the same situation, and then the trouble starts when you listen to EXACTLY what you should do... There is a maxim in the law, because it is true: No two cases are the same.

    I won't give any specific advice to you either, mainly because I am not licensed to practice in your jurisdiction, and secondly, because I don't even know what your jurisdiction is. But, wherever you are, your state's statutes and caselaw, even local ordinances ,will control. I will tell you something that you should seriously consider: Turn in a claim to your homeowners' insurance carrier. Their duty to provide and pay for a lawyer to defend you is greater than their duty to indemnify you for any judgment that might be entered. Let them tell you that the allegations of the Complaint are not covered under your policy, and they just might pay for a lawyer to defend you even if it is not covered.

    If nothing else, although everyone here is motivated by good intentions, the opinions expressed are wildly wide of the mark, with only a couple of exceptions. The rub is that you've no ability to tell which is which, so you're better off ignoring all.

    Aside from that, tell the truth, bring documentation and any witnesses who will testify to what anyone said or did. Good luck.
  8. gpcollen1

    gpcollen1 Minister of Fire

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    All I will add to the lawyers comment is that i would not involve my homeowners insurance at all. Too many claims to them and they cancel your policy. Save them for when you really need them...
  9. Wade A.

    Wade A. Feeling the Heat

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    CT, you prove my point. Thanks for the reinforcement. :)

    As useful as this board is for learning how to burn wood, it has serious limitations as a forum for obtaining legal advice. (Personally though, I AM looking forward to the do-it-yourself appendectomy thread......)
  10. smokinj

    smokinj Minister of Fire

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    lol That's funny. Would everything be much simpler to just give the money back? 400.00 bucks give me a break.
  11. gpcollen1

    gpcollen1 Minister of Fire

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    I agree with you to an extent. But what these Forums do is gather the experience of many and gives someone some 'experiences' to use as a decision making tool. other than that, he is just guessing. I get advice all the time but it is up to me to sift through it and make a decision.
  12. Wade A.

    Wade A. Feeling the Heat

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    CT, I know everyone is trying to help, but here's the difference: If you've got a certain make and model woodstove, that stove is going to look, work and burn the same, no matter where it happens to be, within the parameters of the design and manufacture, and the known laws of physics . Advice you get on that topic can be weighed and sifted according to those constants. When you are talking about litigation there are no such constants...the law of each jurisdiction is different, and the fact variations of each allegation can be infinite. Look at it this way: If you posted a request here to know the solution to a problem that was specific to your make/model of stove, and someone gave you specific advice that only applied to THEIR (different) make/model (but didn't tell you their stove was different), how useful could that advice be? On top of that, what if the person giving the advice claimed that, from his experience, this solution was absolutely what he should do. Right..you could get yourself into a butt load of trouble taking that advice. Multiply this process by the number of posts that Treeburner got inl reply to his questions, and you've got an idea of how big a Charlie Foxtrot could result.

    But, this opinion of mine is just an offer, as is yours.....we're all free adults here, am I right?
  13. billb3

    billb3 Minister of Fire

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    Some of us have gotten hitched.
  14. Wade A.

    Wade A. Feeling the Heat

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    Yeah, you're right Bill. I signed away that right years ago. Come to think of it, if I WAS a free adult, I'd have made my installation in about half the time, the necessity of clearing everything through the Design Committee being removed and all....
  15. benjamin

    benjamin Minister of Fire

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    Sorry to everybody for beating a dead horse, but we're still waiting for the official verdict.

    I've been in small claims many times, and the first thing you need to know is that small claims court exists so the judge doesn't have to waste as much time on the nuts and looney tunes. In WI, most counties require mediation, which involves a trained volunteer and a quick meeting then another date for the real trial if no agreement is reached, or in some counties the mediation is with a court employee which involves several hours of waiting, a quick meeting and another date for a real trial if no agreement is reached. The only time I had somebody not agree in mediation, they were already planning bancrupcy. I'd consider it fair (or at least extremely expediant) to take the stove back, but no way I'd pick it up or be extorted $300 on a $400 stove.

    I would guess the plaintiff is bluffing because she states that she will have her experts show up in court, an hour+ each way and the time in court? what kind of second hand stove installer is going to be willing to put up with that hassle? She probably told the installer that they'd get paid "when" she wins her lawsuit, and if they have any brains they'll cut her loose before they lose any more time on a deadbeat.

    My guess is that she's awarded $100 plus costs, but if she hasn't had her morning meth, or the judge thinks she's as unreasonable as you portray her as, you might get lucky.
  16. Singed Eyebrows

    Singed Eyebrows New Member

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    Why would you repair her stove? I forget if this is small claims, if it is you could still appeal if you lost, to the next court up. At that one you can have a jury trial,hopefully. Doesn't sound like a jury would be too impressed with her. I fail to see what kind of negligence or fraud this b.....is going to prove you guilty of, Randy
  17. Blondesense

    Blondesense New Member

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    So..... Inquiring minds want to know.
  18. woodchip

    woodchip Minister of Fire

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    +1

    Silence either means off celebrating a victory, or quietly licking wounds.

    Or possible failure to come to a decision inside a mediation session, now waiting for a formal court date to be set.
  19. Fsappo

    Fsappo Minister of Fire

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    Or serving 30 days for starting a fist fight in the courtroom. Just sayin
  20. kettensäge

    kettensäge Feeling the Heat

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    Ordered to keep hush pending the verdict?
  21. mellow

    mellow Resident Stove Connoisseur

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    Interesting, I find wood stoves from time to time and refurb and sell them, curious to see how this turned out. To bad we don't know the city,state we could look it up.
  22. mellow

    mellow Resident Stove Connoisseur

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    Bump, maybe they had to cancel internet to pay for the fine?
  23. Fsappo

    Fsappo Minister of Fire

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    Maybe it was just a start to a novel and the guy wanted to use us for some ideas?

    It was the best of stoves, it was the worst of stoves.
  24. woodchip

    woodchip Minister of Fire

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    One has to wonder why any post was put up originally if we were not going to be treated to the courtesy of some sort of reply after the court date..........

    Only has to say he had to keep quiet for legal reasons and it was going to a full hearing.

    The cynic in me suddenly wonders if there ever was a cracked woodburner ;-)
  25. Jack Straw

    Jack Straw Minister of Fire

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    A lawsuit like that could take months or even years. You have to find a jury that doesn't know any wood stoves. Then you have a team of legal experts on both sides. If there is a decision then you have appeals....who knows this could end in the supreme court.
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