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The Ethics of Gun Sales
In May 2007, I paid $4,950.00 for this 1936 S&W .357 Registered Magnum to David Carroll, who is currently serving as President of the Collector Arms Dealers Association (CADA). Then as now Mr. Carroll's policy was not to furnish any photographs of guns listed in his catalog, referring instead to his reputation among gun collectors. However, he reassured me that the gun was 100% mechanically sound, which was my main concern for this purchase.
Several months later, I realized that the bluing wear on the left hand side of the frame above the trigger was consistent with the cylinder having rubbed there while being rotated with the yoke fully swung out of the frame. Admittedly, at present the cylinder edge rotates free of the frame at all times, the action is completely within factory spec, and all chambers align with the bore at lockup. The yoke matches the frame in tight fit and correct number, and there are neither marks nor records of factory rework. Nevertheless, I feel that in view of strong evidence of past damage to the yoke, the seller materially misrepresented the gun as 100% mechanically sound. Yet when I asked Mr. Carroll to make good on his description, he informed me that according to his lawyer he had no duty to disclose the damage at issue. I have half a mind to disclose this back story in my auction listing, shaming publicly what I take to be arrant dishonesty on the seller's part. Short of that, I would appreciate some feedback from my fellow collectors as to the right thing to do under the circumstances. |
not sure pictures would have given you the information you needed on a damaged yoke, but " several months later....", sounds like this is past the normal 3 day inspection period, I do not know Mr. Carroll nor do I speak for him, but it sounds a little to late to ask for your money back.....I am very sorry this has happened.....and this does not put 5k back into savings, but we all need to take caution on these type of transaction where we do not have hands on inspection prior to purchase.
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My question is more general. Whenever I offer one of my guns for sale, I make a point of disclosing every one of its faults known to me. How much does my own practice of full disclosure entitle me to hold others to the standard that I impose upon myself? |
Michael, my ramblings on this subject.
1. All shortcomings should be disclosed ahead of time 2. If 3 days have passed and it states that way on his website (it does); then I personally feel the deal is complete 3. The above said, my reputation is very important to me and I'd try to make right with a buyer, unless a long time has passed (which is true in your case {{several months had passed}}) 4. Again, that said; when you asked, was his answer as you said; he immediately fell back on the lawyer reply? a. If so, that sounds like he knew the damage was there, especially for such an expensive item. b. Or, if he admitted to previous damage and said the lawyer reply, I believe he'd be misrepresenting the item at sale. If he did not admit to the damage but "lawyered" up, it just makes him "sound" guilty and I don't know if that is enough legally to win... I would think fraud would have to be shown that he previously knew of the damage and if you take him to court, he would just have to say; "I didn't know"; which can be seen as "what a stupid collector" and let him off the hook of fraud; or "puts into doubt his knowledge considering he sells these as collector pieces. No offense Michael and I'm just asking, but if it took you 2 months to notice / figure out, couldn't he say the same thing; that he'd only had it in his "shop" for a short while and had not looked at it closely? All that said; he sounds like an arrogant guy who doesn't back up his sales! Ed |
In this age of technology there is no good reason to not supply pics. I personnally would not do business with anyone no matter who they were.
As the saying goes talk is cheap. |
Michael,
While I totally sympathize with your situation, "several months later", statute of limitations notwithstanding, is WAY too long to be registering a complaint and seeking reparations. If you are in a position to invest $5K in an item, the expectations are you know enough about the investment to make that commitment. Your involvement in "offer[ing] one of my guns for sale" and "have[ing] half a mind to disclose this back story in my auction listing" is tacit admission that you are at least knowledgable, if not expert, in the sale of guns and determination of a weapons originality and worth. Given that premise, it would not be out of the question for the opposing party to claim that you are exhibiting "buyer's remorse" and there is no compelling evidence that after such an extended period of time the damage to the weapon was not the result of your careless handling subsequent to purchase. An "affidavit of damage signed by a gunsmith" will have no bearing on when the damage occurred. I have no doubt of your integrity and your being on the moral high ground, but I would think you have missed your window of opportunity for redress. It is regrettable, but I suspect that the legal answer to "How much does my own practice of full disclosure entitle me to hold others to the standard that I impose upon myself?" is zero. We in the collecting community hold ourselves to standards of honesty, but when those standards are violated it is incumbent upon the victimized party to seek immediate and, if necessary and possible, public address of the wrongful actions. I am not a lawyer so my opinion is worth nothing. But, I have been on the wrong side of transactions enough times to know that it doesn't always favor the good guy. Good luck on whatever you decide to do. |
Michael,
Please keep this thread updated: I am very interested in an outcome of your case. If you win it in court, it might open the door to many other possible lawsuits in US. Clifton. |
Michael:
I feel you pain and aggravation as it is no fun being on the short end of the stick for $5000.00! A few years back I was involved in a small claims court (unrealated to firearms) and was surprised with the outcome. I prevailed in the judgment, however it is up to me to collect damages! In other words, I went full circle and ended right back where I started. That's the way it is in Upstate New York as it was a complete waste of time. If you are loosing sleep over this matter, as I know I would, hire an Attorney and agree to a hourly rate and have him write this guy a letter and see if your Attorney can shake him up! You never know what will fall from the tree as it may be a $5000.00 refund? The best of luck. George |
Michael, as is common, I find myself in complete agreement with Ron Wood's thoughts.
I didn't notice an explanation of why it was "several months" before you discovered this fault. That's not to say I don't believe you and sympathize with your plight. I just personally don't think you have a strong case. |
Michael...Put the shoe on the other foot. You sell a pistol for 5K. Months later a guy writes and says I noticed some damage. You say to yourself..that damage wasn't there when I sold it. And if it was.. you can be durn sure a buyer of a $5000 dollar pistol would have noticed.
Now three days after the buyer recieves the pistol you still have the five grand in your account. 3 months later it was spent on ..something else. The three day rule gives one the opportunity to closely inspect the purchase for flaws. The fact that you didn't find any puts the ball in your court since you tacitly agreed that there were none. There is a great big question of WHEN did the damage occour as Ron says. I gotta say...I am like Ed, I guard my reputation too but after 3 months..You bought yourself a pistol. Like some others here I am no lawyer nor a dealer. Just a collector. I wish you the best! Jerry Burney |
Michael -
I have had good success in getting my money back when something has been misrepresented, regardless of how much time as expired. In my experience, the key issues are these: When did you actually discover that you had been defrauded? And, how soon after you discovered the item had been misrepresented did you actually start to take appropriate action? (You are expected to exercise your rights with due diligence.) Every state will have procedures for filing a complaint of consumer fraud. You can Google such procedures with a search such as "confumer fraud, Missouri" or whatever state the seller lives in. Then you can visit their site and they will have an explanation of their procedures, and sometimes a form that you can use to file a formal complaint. Sometimes you can use their form plus your own typed letter if the case if especially complex. When you file such a complaint, you will need to include every document you have related to the sale; explain how and when you became aware you had been defrauded; explain the efforts you have already made to get your money back; and explain the relief you are seeking (which is you want your money back). The case file that you develop and submit with your complaint will have to be of sufficient detail so that anyone who picks it up and reads it will understand exactly what you are talking about, even if they know nothing about firearms. In other words, what you put into writing will have to stand on its own without further explanation. The various state and/or county agencies which will investigate your complaint will never tell you whether they think you have a good case. But very often you will get you money back. And these procedures are completely free. Additionally, since this involves a firearm, you can reasonably expect that your complaint will receive close attention. Please send me your private Email address, and I will forward you a short paper I have written entitled "Getting Your Money Back." Mauser720 - Ron |
Thanks to all for their responses. Herewith several points to clarify the issue:
1. I represented myself to David Carroll as a long time student and collector of automatic pistols who knew nothing about revolvers. I stressed that I needed a mechanically perfect specimen of the first Magnum revolver for a study that I was conducting. He reassured me that the revolver in question answered my requirements. 2. I did not expect this revolver to be cosmetically perfect. It took me some time to correlate its pre-existing cosmetic damage with a likely mechanical cause, through comparing its action to another Registered Magnum in my possession. 3. David Carroll does not dispute that the damage I discovered pre-dated my purchase. He refers me to his lawyer's opinion that he had "no duty to disclose" this damage, notwithstanding his express reassurances of mechanical perfection. 4. I am less interested in recovering my money, than I am in setting myself right about the ethical issue. David Carroll holds himself out as the highest authority on dealing in collectible firearms. Compared to him, I am a piker. Hence my present attempt to draw on the wisdom of my betters in this forum. |
Michael,
In my opinion, the main point is whether the seller knew of the damage to the revolver when he sold it. If he was aware of the damage based on his expertise with these revolvers, then he has misrepresented the item and theoretically you are entitled to your money back under the condition that the revolver is in the same exact condition as when you had received it. In my opinion, misrepresentation or fraud should not be limited to a three day inspection period. For example, if this was an international deal, a three day inspection period cannot be properly and fairly applied. When I was a young collector, I had a similar case involving a purchase of an LP-08 from a well-know dealer. I was able to return the item after seven years because he had obviously misrepresented an item which he had sold to me and I threatened him that I was going to smear his name unless I get my money back. I did not have to take such action, but it left an unpleasant taste in my mouth. Unfortunately, in many cases, dealers, auction houses and collectors throw their principles/ethics out the window for the sake of money and use the excuse 'buyer beware' to defraud. It is partially the buyers responsibility to check out the record/reputation of a seller before doing business, and as many collectors know in the field of Luger collecting, there are some people who have a bad reputation since the stone age period, but some collectors do not wish to learn who is 'the good, the bad and the ugly'! I believe that it is a waste of time and money to take your case to a court, and you better off publicizing this matter all across the Internet if the seller is not prepared to correct this matter. If the seller maintains any value in his integrity or reputation, he will decide to refund the money. Good luck, and hopefully your case will help in 'cleaning up' the s*** that occurs in our hobby. Albert |
Gentlemen...I would be carefull with the accusation of FRAUD. I ain't no lawyer like I said before but if you can't prove it you can get a reverse lawsuit for slander..defemation of character ad infinitum. I wouldn't stick my hand on that tarbaby.
I feel that in view of strong evidence of past damage to the yoke, the seller materially misrepresented the gun as 100% mechanically sound. When the Gentleman sold it to you and made this statement ..it could have been actually and factually correct. At the time of sale it had NO mechanical difficulties. Could be a previous owner had the difficulty and didn't disclose it to your seller. He sold it to you with no knowledge of a problem. Have you asked Smith & Wesson if this pistol has ever been in their shop for work? I'm pretty much an outsider with no dog in this fight but you haven't convinced me of anything except that you accepted a pistol with no apparent damage during the 3 day inspection. Since you inspected it in hand..how would the pictures he didn't provide come into it? You say that... I realized that the bluing wear on the left hand side of the frame above the trigger was consistent with the cylinder having rubbed there while being rotated with the yoke fully swung out of the frame. It could be argued that there was some other cause for bluing wear in this area. Mishandeling by the buyer over several months, or anything, a hundred surmises one could think up. It could be argued that it would take a Smith & Wesson Factory Gunsmith or some other bonified registered gunsmith expert to make this same conclusion stick. If I were a lawyer I would be poking holes in your analysis left and right. Then I would cost you at least 10 grand to defend yourself against the trouble you caused my client. I can tell you this much..If I KNEW I could win a hundred K in a lawsuit and it would take 2 years to do it...I wouldn't. It's not worth 2 years of my life tied up with lawyers and courts for money. Best to you Michael! Jerry Burney |
For $5000, if you cant hold it in your hands and insp. it, dont buy it. Sorry for your loss. i agree with all of the above. jmo.
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Michael,
With all due respect, I would think it painfully obvious that if a man is selling something for FIVE THOUSAND DOLLARS(!) and doesn't want you to see it before you buy it (I can't afford a camera or I don't know how to use one, or I don't have access to the internet; all silly excuses), quite plainly he has something to hide. I might give him $5 for a look if I am curious to see WHICH fraud he is committing, but I sure as hell am not going to fork out $5K to see the aces I already know he has up his sleeve. To me this is no less clear than the emails I get from Africa offering to make me rich if only I will help some poor unlucky soul smuggle his/her millions out of the country. All other things not taken into account; you waited three months before complaining. You have no leg to stand on. |
FWIW,
You can, in general, make any true statements about another person that you wish. It's when you make false statements that moral and legal problems can arise. If someone cheated you, and the facts show this to be true, then saying so isn't a problem, no matter how much time has past since the deal. Call a Spade a Spade. It's just like Daddy told you: don't lie, don't cheat, don't steal. Now, legal action to get your money back is quite a different matter on these Internet deals. Once you cross state lines, things get messy... H |
I assume this type of problem is inevitable in collecting any collectibles. Certain percentage just goes this way. If we review this particular case, acquiring without seeing was a big mistake..... and 3 month.... well, that depends on seller. Since he rejected refunding, is it possible to get "store credit" or something -- let him keep that 5k (it's in his hand anyway), return this one and buy something else from him (if something interests you, and you pay big attention this time), will he agree?
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Thanks again for further responses.
I originally asked David Carroll for store credit. The prices he asks for comparably described guns have increased by more than 20% since last May, but it would have been fine by me to pay extra for a mechanically correct specimen. But Mr. Carroll turned down my request. Besides, to this day his catalog includes no pictures. Judging by the turn rate of his inventory, his customers are undeterred by this lack. |
Michael,
You state, "Admittedly, at present the cylinder edge rotates free of the frame at all times, the action is completely within factory spec, and all chambers align with the bore at lockup. The yoke matches the frame in tight fit and correct number, and there are neither marks nor records of factory rework." It sounds like the gun is now in 100% mechanical condition which is what you wanted. You have cosmetic damage that you think resulted from damage to the yoke. Maybe the shaft that supports the cylinder was slightly bent and it was replaced with a straight one. Maybe the damage happened some other way unrelated to the cylinder yoke or shaft being damaged. If the gun was advertised as 100% mechanically and it's 100% mechanically I don't see the issue. Perhaps the damage happened years ago and the seller didn't know any more than the bluing was damaged. |
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Word gets around. Ed |
Michael... I think that Ron Wood and Jerry Burney have best represented your circumstances in their comments...
In my own humble opinion, the pre-knowledge of the damage is only implied by the seller's statements and without photographic evidence of the damage prior to shipment to you, there is no way to prove that he knowingly sold a damaged piece, OR that you are not responsible for the perceived damage since you took possession. This may not have involved the "expensive tuition at Luger University" about which Tom Armstrong often speaks in connection to Luger collecting, but I feel your pain in ending up with a firearm that you feel may not be worth what you paid for it. Unfortunately, Caveat Emptor is not just a cliche' |
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We have been selling used firearms for a living since 1974 and don't know Mr Carroll personally . We have purchased from him several times a few Colt 2nd Gen SAA's for our customers . On one occasion , the gun he shipped was not as described . We contacted him the day of the arrival and he said "send it back" . By chance , he had another one . It arrived to our satisfaction . Our experiences are positive regarding Mr Carroll . |
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That said, there are a few members on the forum who state they'll send back an item in a flash if it doesn't meet their satisfaction and that gives me pause in wanting to sell to them. For me as a seller, I'd rather they ask lots of questions and ask for extra pictures and not have to send it back. In all of my dealings with guys, I have only had 3 or 4 items sent back, which is a pretty good record I think.... I too am a buyer who is amazed at sellers who refuse to make pictures available to buyers or learn how to post them. On the other hand, unless I have a good feeling for the item / seller, then I simply won't buy from them.... Ed |
Michael -
You have written: "David Carroll does not dispute that the damage I discovered pre-dated my purchase. He refers me to his lawyer's opinion that he had "no duty to disclose" this damage, notwithstanding his express reassurances of mechanical perfection." Two suggestions regarding this statement: (1) I would ask to see a copy of this opinion; and, (2) I would ask for the name and mailing address of this attorney so that you can provide him or her with a courtesy copy of all future correspondence. Now here is a statement that has appeared in this thread which I also think is worthy of comment and/or discussion: "......if you can't prove it you get a reverse lawsuit for slander..defamation of character ad infinitum." It does seem that we often hear about sellers threatening lawsuits for slander; however, when was the last time any of us have any actual knowledge of such a lawsuit actually being filed, and a judgement actually being collected? I suspect this (a dealer suing a buyer) is actually a very rare occurence. Why? Well, first, the seller is going to have to file the lawsuit in the state where the buyer lives. This means the expense of hiring an attorney who is a member of the bar in the state where the buyer lives. (Less of an issue if the buyer and seller live in the same state.) Secondly, in order to collect a judgment, the seller is going to have to prove several things including but not limited to the following: (1) The buyer knew that what he was saying was not true; (2) The seller suffered some financial loss or damages as a result of the false statements made by the buyer. Additionally, sellers know that if they do file a lawsuit against a buyer, the entire court record then becomes a matter of public record. Anyone can see exactly what the seller did and/or said. And if anyone were of a mind to do so, they could even post the entire court decision on the Internet. So in view of this, how likely is it that any dishonest seller is actually going to follow through on the threat of a lawsuit against a buyer? And even if a dishonest seller were to do so, how likely is it that any judgement will ever be awarded? Or to put it another way: How likely is a dishonest seller going to risk having a transaction made a matter of public record? I'm only guessing about this; however, I suspect that dealers actually filing lawsuits against buyers is an extremely rare to perhaps even nonexistent event, in spite of all the bluffing and bluster that we hear about. Does anyone even know about a case in which a dealer did file a lawsuit against a buyer, AND actually did collect a judgement? Mauser720 - Ron |
To address recently voiced concerns:
1. Suppose that you are selling a Luger that you represent as all matching. A year after the sale the buyer informs you that its unnumbered firing pin indicates replacement. He claims that you misrepresented your gun. He wants you to make it good. As you see it, all numbers in the gun are matching. What would you do? 2. Suppose that you are selling a shotgun that you represent as 100% mechanically sound. A year after the sale the buyer informs you that the markings on its barrel indicate a repaired bulge. He claims that you misrepresented your gun. He wants you to make it good. As you see it, the repair made the gun 100% mechanically sound. What would you do? |
Both these conditions should have been apparent to a buyer within the customary three day inspection.
In the first instance: what if you actually did sell an all matching Luger? The buyer breaks the firing pin and a year later wants to return the luger with a replaced firing pin for a full refund on a gun that is now worth half what you sold it for. The shotgun example falls into a matter of semantics or viewpoint. That is why detailed descriptions and condition statements, along with in depth buyer questions are so important. Let's not forget that there are a number of unscrupulous BUYERS out there too. A famous or rather notorious machinegun dealer of several decades ago was known to receive rare guns such as Colt Thompsons and then return them with either no explanation or with the story that he did not want to buy the piece since it was not all original, all matching, repaired, take your pick. It got around that he would strip desirable parts that were in good shape and substituted more worn parts in their place prior to returning the piece. Many buyers later face remorse issues, economic issues, responsibility issues, mishaps or other factors, which lead them to try and get their money back. That's why a fair three day inspection FROM DATE OF RECEIPT has usually been in place from reputable dealers. While I would probably have made good on this transaction, I also think there is enough buyer abuse out there to readily dismiss a claim made from much beyond the three day inspection period. |
On both counts, I would feel bad and worry, but tell the seller, sorry, its been a year....
Your first example is not a good one tho Michael, as a knowledgeable seller should know when a firing pin is numbered and when it should not be. Now, take a model 1900 and unless you take the safety lever off, you won't know if it is "matching" or not (numbers are on the REAR of the lever) and I personally do not feel it prudent to take that part off; and would be a bit suspecious if you did and claimed it was non-matching. I sold a luger as all matching (twice) and the firing pin in both cases were not matching, I simply screwed up. One seller sent it back (him inspecting it within 3 days) and I sent him his money back. The other, we worked out a compromise by me reimbursing him money. As an aside, in my eyes, a mismatched firing pin is not that bad, or a huge detractor in value, as those parts break (as do grips); but a mismatched sideplate or trigger and its value goes way down in my eyes. There has to be a point where the sale is done (to me). There are many dealers who claim that they will back the item forever as to authenticity. But damage, thats different..... YOU as the buyer, would KNOW you hadn't shot that gun and caused the barrel to bulge. But as a seller, you looked it over, you sold it, the buyer looked it over and both of you were satisfied (within that 3 day window, or whatever amount of time the seller claims). HOWEVER, one point that has not been touched as much as it should; is that you feel he is considered one of THE experts in this field; and he should have known better. My feeling is that is what sticks in our craw? 1. That he should have known better and either told you of the damage or known of it. 2. Other well known dealers will usually offer you a replacement item of equal value or some other form of compensation. Michael, I can leave this thread open as long as you want, but I sense "frustration"; as most folks aren't seeing it your way. I think you'd have more folks agreeing with you if you'd caught the damage within the (magical) 3 days and then the seller was telling you to stick it in your, uh ear. Ed |
Ron, I think I may not have made myself clear...
I'm only guessing about this; however, I suspect that dealers actually filing lawsuits against buyers is an extremely rare to perhaps even nonexistent event, in spite of all the bluffing and bluster that we hear about. Does anyone even know about a case in which a dealer did file a lawsuit against a buyer, AND actually did collect a judgement? One does not have to collect a judgement to cost you a ton of money. Simply putting together some sort of defense against a lawsuit could immediately cost $5000.00 in retainers. At $300-500 an hour you could go deep in a hurry. One must put a pencil to this and determine just how bad the damages might be. Michael says there is cosmetic damage...This seems to be the extent of his complaint. Lets say the damage is $1000 to be overly generous. Michael says Herr Carrolls prices have risen 20% since he bought his pistol. This brings his pistol back to $5000. So it could be argued there is no loss. I still believe there is NO way to proove any culpability by the seller. Or, if there was a way it would involve much too much investment for too little return. This all turns on ONE thing regardless of other considerations. Michael had this pistol in his possesion during an inspection period of at least 72 hours. Ostensibly.. this gave the buyer a hands on look and an opportunity to accept or reject the purchase. 1. I represented myself to David Carroll as a long time student and collector of automatic pistols who knew nothing about revolvers. I stressed that I needed a mechanically perfect specimen of the first Magnum revolver for a study that I was conducting. He reassured me that the revolver in question answered my requirements. 2. I did not expect this revolver to be cosmetically perfect. It took me some time to correlate its pre-existing cosmetic damage with a likely mechanical cause, through comparing its action to another Registered Magnum in my possession. In the above statements, Michael admits to being incompetent to analyize the condition of this pistol. Knowing this as he must... it would behoove him to arrange for someone to look over this pistol by a previous arrangement or during the 72 hours provided. By NOT returning the pistol.. Michael agreed that it was acceptable! Mr Carroll and Michael came to the fullfilment of a contract. Money was exchanged. End of story. Mr. Carroll did not offer any guarentee I am aware of. Like buying a used car...Seller says It is in good mechanical order..you are welcome to inspect it. 3 months later it explodes. Judge Judy is not going to give your money back. Michael presents two scenarios as a comparison to his situation... Both these conditions should have been apparent to a buyer within the customary three day inspection. In the first instance: what if you actually did sell an all matching Luger? The buyer breaks the firing pin and a year later wants to return the luger with a replaced firing pin for a full refund on a gun that is now worth half what you sold it for. EXACTLY! The shotgun...Who is to say the buyer did not make this repair, become dissatisfied with it and try to return it. I believe all of these scenarios hinge on a competant inspection. If I am unable to look over a 5000 dollar purchase with enough accuracy to protect my investment... I better arrange for someone who can. Again...Best to you michael! I hope this works out to your advantage... Jerry Burney |
Jerry, the word incompetent is a bit strong and you don't have a TV to watch Judge Judy, so you can't use her as an excuse.
Ed |
As I stated at the outset, when I asked David Carroll to make good on his description of the revolver as 100% mechanically sound, he informed me that according to his lawyer he had no duty to disclose the damage at issue. So in my hypotheticals, assume that you have sold the Luger with the knowledge that it had an unnumbered firing pin, relying on your interpretation of the semantics of "all matching". Likewise, assume that you have sold the shotgun with the knowledge that it has had a bulge removed from its barrel, relying on your interpretation of the semantics of "100% mechanically sound". What would you tell the buyer that confronted you with a more exacting interpretation of these terms?
I agree that there has to be a point where the sale is done. That is why the law stipulates a three year statute of limitations on fraud. I don't think that liability for deliberate material misrepresentations is mitigated, let alone extinguished, under the "three day rule". |
If both sellers interpretation at the time was all matching, you later saying it isn't, doesn't change their interpretation at the time. There can be no fraud when the seller represented as "he believed at the time". If I felt that a 1929 police luger was correct having an unnumbered FP and subsequent determination by collectors say it should be numbered; that isn't fraud, I sold it as I beleived at the time.
Just because you don't agree doesn't mean it is fraud (in your examples). In your case of his lawyer saying versus what you are saying; well, the only way to find out if a judge agrees with your interpretation is to sue him. But your use of the word fraud is too open and I believe wrong. Since you like to be exact, fraud is what? I believe it is the actual misrepresentation of an item. If the seller knew he was selling something defective, then it is fraud. Is it 100% mechanically sound? (no fraud) Or is it just cosmetically unsound? (I have not been able to grasp what you are actually saying in your description btw). Sometimes a simple explanation and not a 3 paragraph lawyer blah, blah goes over best with me (sorry, its true, I am a bit dense at times, ask my wife). OR is it and was it unmechanically unsound; then it is fraud in my mind. Ed |
Michael,
Allow me to clarify a point, you state "As I stated at the outset, when I asked David Carroll to make good on his description of the revolver as 100% mechanically sound, he informed me that according to his lawyer he had no duty to disclose the damage at issue." What is the "damage of issue"you, David Carrol and the lawyer are referring to? Is it the damage to the bluing or is he admitting that the gun was mechanically damaged and repaired and he had no obligation to tell you it was repaired? I'm just trying to understand why you keep coming back with different examples. Tom |
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Michael, I think you answered your own question. |
Jerry, the word incompetent is a bit strong and you don't have a TV to watch Judge Judy, so you can't use her as an excuse.
Ed, I tried to think of a better word as I thought the same as you but what would one use? I am incompetent to work on a computer, fix my car or diagnose a problem with a TV. That dosen't make me a complete idiot, just incompetent in those fields. There are certainly guns that I am incompetent to form an opinion on. I admit it. I am incompetent in so many fields of study I ask advice constantly. I wish Michael the best here and I don't even know who David Carroll is. I was just hoping to point out some pitfalls he could run into and think about how he got there. Jerry Burney |
Michael -
Regarding this statement: "I don't think that liability for deliberate material misrepresentations is mitigated, let alone extinguished, under the "three day rule." You are correct to the extent that if someone can prove that fraud has been involved from the beginning, then all such time limits are null and void. Mauser720 - Ron |
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Michael,
To sum this up, I can't get past the fact that you say the gun as delivered was/is 100% mechanically sound and that was your main criterion for buying the piece. You obviously noticed the bluing damage when you received the gun and that didn't deter you from keeping the gun. So IMHO you received what you wanted and there is no fraud involved. The possibility that the gun may have been damaged and repaired is a situation open to debate as to whether the seller should have mentioned it to you. If you stressed the importance of 100% mechanical correctness and the gun is 100% then I'm not sure that it matters that at some time it may not have been. Without a transcript of who said what to whom and when it was said it's difficult to take a position. If I were the seller I would have explained what caused the obvious bluing damage, if I knew the cause, e.g. the widget or whatever was damaged and was replaced and it's not a numbered part and the gun is 100% mechanically correct. However, I attempt to be totally honest with folks because that's what I want from them but don't always succeed in getting. From what you have related to the forum regarding the purchase, I don't think you have a case to go forward with but, different strokes...... Seems that your Samuel beckett may apply to the situation. Tom |
Unless you have $$$$$ to move forward with a lawsuit there is almost no recourse. The implied contract was the gun was mechanically sound, which it is.
Unless the seller lives in the same state, you will have to hire a lawyer in his state to sue him. That lawyer will not work on a percentage of the claim and if he does you are out 30% right from the start. The 3 day inspection is what I put in my letter to the seller so it constitutes a contract, do you have a written contract regarding a return policy from the seller? These are the legal issues you will have to deal with. My 2c, Mark |
Mark -
Actually, you do not need a dime to move forward on such complaints. There is a recourse which is totally free of charge. The Attorney General in every state will have some procedures in place for consumers (including collectors such as you and I) to file a complaint of consumer fraud. Not only is the service completely free of charge, but the results become part of a permanent file which is maintained by the state's particular agency which deals with such complaints. And it does work. Please see more information in my earlier post to this thread on page #1. Mauser720 - Ron |
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