The Ethics of Gun Sales

[Michael Zeleny]

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.

[policeluger]

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.

[Michael Zeleny]

Originally posted by policeluger
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.

The statute of limitations for fraud is three years. I am confident that an affidavit of damage signed by a gunsmith, supported by copies of my correspondence with Mr. Carroll, will yield a small claims court judgment in the amount of my losses. In practical terms, the mere filing of a small claims lawsuit in another state would pose a dilemma for the unscrupulous seller, between suffering a default judgment and incurring long distance defense costs comparable to the total amount of his liability. That is not a route I want to take, but its availability enters in my consideration of more desirable alternatives.

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?

[Edward Tinker]

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

[Curly1]

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.

[Ron Wood]

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.

[CLIFTON]

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.

[Mauser George]

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

[Rod WMG]

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.

[lugerholsterrepair]

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

[Mauser720]

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

[Michael Zeleny]

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.

[Imperial Arms]

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

[lugerholsterrepair]

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

[lboos]

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.

[davidkachel]

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.

[azlaw]

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

[alvin]

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?

[Michael Zeleny]

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.

[Tomathvl]

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.