The Ethics of Gun Sales

[Edward Tinker]

Originally posted by 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.

It also comes down to this; 50 people or more who have read this will think twice about this Carroll guy; if asked, they'll say, well, he "supposedly" has good stuff but his return policy stinks.


Word gets around.


Ed

[John Sabato]

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'

[guy sajer]

It also comes down to this; 50 people or more who have read this will think twice about this Carroll guy; if asked, they'll say, well, he "supposedly" has good stuff but his return policy stinks.

True , but with only one of the party's in question posting here , is it fair to Mr Carroll ? I think publically questioning anyone's reputation after a 14 month old transaction deserves a lot of scrutiny . I'm not saying Michael's not relating factually , but the time to raise attention was 13-14 months ago , imo .

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 .

[Edward Tinker]

Originally posted by guy sajer
True , but with only one of the party's in question posting here , is it fair to Mr Carroll ? I think publically questioning anyone's reputation after a 14 month old transaction deserves a lot of scrutiny . I'm not saying Michael's not relating factually , but the time to raise attention was 13-14 months ago , imo .
...

true, but my point was that ANYTIME you read something like this, it makes you wonder.

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

[Mauser720]

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

[Michael Zeleny]

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?

[alanint]

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.

[Edward Tinker]

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

[lugerholsterrepair]

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

[Edward Tinker]

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

[Michael Zeleny]

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".

[Edward Tinker]

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

[Tomathvl]

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

[SIGP2101]

Whenever I offer one of my guns for sale, I make a point of disclosing every one of its faults known to me.

Michael, I think you answered your own question.

[lugerholsterrepair]

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

[Mauser720]

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

[Michael Zeleny]

Originally posted by Tomathvl
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

As I understood his explanation, David Carroll knew that the cylinder had rubbed against the frame at some point. But he did not think that he was obligated to inform me of that at the time of my purchase. In fact, here is what he wrote to me in response to my questions about the cosmetic condition of the gun:

Now, I've provided you with a definitive comparison on two guns vs. mine, as well as having gone over quite a number of others as my inventory has changed over the past 8-10 months. If you are interested in buying the 6.5", please let me know. I'm not excited by- or, inclined to be- covering the same issues over and over - as in: more photo comparisons. As my website explains; I don't do photos for my inventory other than on engraved, extremely rare and/ or special configuration guns. My descriptions are accurate, as evidenced by the 27 collectors who have purchased 371 S&W's from me in the last 24 days.

The description at issue was that the revolver in question was 100% mechanically sound.

[Tomathvl]

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

[MarkC]

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

[Mauser720]

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