What would you do?UPDATED

[shadroch]

I've got a problem and am looking for advice.

Here is the scenerio:

About a month ago,my LCS opened a second store,and I went to the Grand Opening.They had some nice SA books on sale at 33% off their normal price. To my surprise they had a much nicer selection than in their main site. I picked up about 43 Adventures and JLAs in VFish condition. The stickers totaled $1780,the price should have been just south of $1200 but the owner knocked off some more and gave them to me for an even $1000.I was happy,thrilled,ect,ect.

Today,I opened them up and 17 had coupons cut out,mostly for Palisades Park,but some for other items as well.

I brought them back to the store and the MGR was quite sorry and assured me the owner would rectify the situation. A few hours later,The Owner called and said that while he was sorry,the books were on consignment and the owner had already been paid.He claimed that he made less than $100 on the deal and the best he would do is give me $100 store credit or 15% off my next couple of purchases.

Now,I don't buy new comics and get most of my BIs off ebay. I have,however,in the last few years bought a Captain America shield,a Thors Hammer,several Bowens figures and a NM+ run of Marvel Collectors Items1-25 off of him.As well as several hundred Mylites, a dozen or so boxes,and several hardcover Price guides,as well as at least 2Gs worth of back issues.

I am not a happy camper.He knows this but seems indifferent.I doubt further conversation will get me anywhere.

I have an idea on how to get some payback,but am more than willing to calm down,get some suggestions and advice before I do anything,so please-let me know your thoughts.

I may make him aware of this thread.

BTW-he posts several dozen items on ebay weekly,and I have access to several dormant accounts.

[Aces]

1) Always check the insides!

2)Always ask if they are "the sellers" books or it is some kind of consignment deal which means no returns.

 

Having said those two obligatory things..........

 

This Sucks!

 

I always check the insides of every comic I sell on eBay or in private!

I even counted the pages in those $1 Spider-mans you won from me on eBay that you should be getting in the mail soon if you didn't already.

 

It's unconscionable that nearly half of them had cut-outs!

 

I wouldn't recommend doing anything illegal about it though...

Just make sure word gets around who this "seller" is.

[awe4one]

That's a tough one....

 

I would try a last reengagement with the owner....if that fails to resolve the issue then I'd cut him off. Maybe later, after he sees the money he's lost, he would try to make amends. I doubt it would work though....

 

What I wouldn't do is shill his auctions. Though tempting, I would suck it up and not stoop to his level to get some momentary satisfaction. You're probably joking anyway.....

 

Jim

[shadroch]

To be honest,I gave some thought to bidding and winning several different items using my dormant accounts,then negging him,but it's just not my style.I'm hoping to get some good feedback here and let him see how poorly some serious comic buyers view his actions.

I did screw up by not checking each and every book,but at a Grand opening sale with a bunch of civilians in his shop,I didn't think he'd appreciate me starting to open a bunch of $20-50 books. Monkey see,monkey do.. and all of that.

The other thing is this-I have offered him books several times on consignment but he always said he doesn't do store consignments,only eBay at 35%.

NYC law allows anyone to set up on any sidewalk and sell used books,including comics.Might just take advantage of that when the spring arrives.Maybe right in front of his shop.

[JohnBull]

Ouch! I think we all feel for you.

 

Most important point - were the books stickered as being in VFish condition? If so, you have a clear 100% case for your money back. If not, it might be closer to caveat emptor.

 

The owner of the store seems a bit of a jerk, but he is caught between a rock and a hard place. I can understand him not wanting to reimburse you for stock that isn't his, but he can be more helpful. Get the details of the consignor from him. Explain you have a real consumer issue and if the store owner can't help, maybe the consignor can. Check with the store owner if he will refund his commission if the consignor gives a refund (given what he's already offerred you, the answer is presumably yes). Don't take any BS about confidentiality - the consignor knew that the books were a minefield and he's thrown a flanker at both you and the store owner. The store owner can't help, so go to the source.

 

When you get the guy's address, just knock on his door and be polite. That will probably be sufficient. If the store owner is adamant that he won't give the details, then ask him to give a message explaining how PO you are and how big you are.

[MK Ultra]

I'd get the Veggie Delite on Wheat with no cheese.

 

 

Seriously, I like the idea of trying to contact the cosignor. The cynic in me says he won't do anything though. I also wouldn't patronize the store anymore. I would write a letter to him and explain what you've bought from him in total, and explain that this industry has a high requirement for trust and since you can't trust him to resolve things satisfactorily that you will take your business elsewhere. I can't believe an established dealer didn't check the books himself. The cynic in me thinks that the books came in, he noticed the coupons and said he wouldn't buy them, but offered to see what the market would bear. In the future, maybe ask to examine the books, and if they balk b/c they don't want everyone else doing it ask for a private room, or an after hours visit. If they still balk you know something's up.

[mrwoogieman]

 

I think you may have a small claims case against the guy, which you can file yourself in Civil Court (you're in Queens right? there's one in Jamaica and another in Kew Gardens). I don't believe his consignment story will shield him from your lawsuit because it's irrelevant what he did with your money after the sale (especially since there was no disclosure that these were consigned books). If you beat him in court he can always sue the guy he took the books from to recover his own losses. Some pertinent facts relevant to your case's chances would be: was there a posted store policy on returns or on the sale of goods being 'as is'? (may be irrelevant, however, based upon the course of dealing, i.e., if the guy has taken back stuff before); were there grades on the books or just prices?.

 

It might be a hassle to drag the guy into court, but it's cheap enough to start the lawsuit to make it worthwhile, and in small claims court, neither side is permitted to be represented by counsel, so you don't have to worry about him laying the smackdown with some cost-prohibitive stalling tactics from some schlub attorney.

 

 

Or you can just name names and we'll avoid his auctions and stores until he sustains losses equivalent to yours....

[fiendish]

Small claims court is fun. I don't know about NY, but in LA County it's about $35 to file, then for an additional $50 you can hire the Sheriffs to serve the guy his papers (if you give them the defendant's home address, even better ). Since he's a retail manager, it's may be a pain for him to get away from his story for the court date. If he fails to show up, you win by default!

 

Once you get in front of the "judge" (they're not real judges in LA; they're "judges pro tem" [i.e., lawyers playing hooky]), it's all about the preponderance of the evidence. Since you've got a stack of books with clipped coupons, he's got bupkis.

 

The fact that the books were consigned is irrelevant.

[lighthouse]

I find it highly unlikely that the shop would have already sold through this consignor's entire stock. Things just don't happen that quickly, especially on $50 books. The chances that the only books he consigned were those Adventures and JLAs is really pretty slim...

 

So if the consignor has already been paid, you should be allowed to exchange the books you picked up for other merchandise that the store is selling from that guy's stuff. That way, the store hasn't broken their agreement with the consignor (though they will certainly point out the coupons to him for repricing) and you wind up with fair value for what you paid. It may not be the books you wanted, but they are bound to be better than what you are currently stuck with. The store owner should forgo his commission on the swap and give you the same discount you received on the "sale" items. Swapping sticker for sticker accomplishes this just fine.

 

If I were the store owner, I would also let you take a certain additional amount of inventory from my stock for the inconvenience, probably around the $100-150 range. And again, if it were me, I would probably also offer you the discount on your next couple purchases...

 

Just a thought...

 

If he balks at that, burn his store to the ground... then follow him home and burn his house to the ground... then get the names of every member of his family and burn their houses to the ground... then locate a copy of his 3rd grade yearbook and track down each and every person from his homeroom class and burn their houses to the ground... Just another thought...

[texasknight]

Advise the LCS owner that you have been advised to take him to small claims court, and see if he owns up to his screwup.If he doesn't then file a claim against him. You may also want to advise him that it is nothing personal, but only business as you feel you were taken for a 1000$ purchase that in the end was actually only worth about 100$.

[sterlingcomics]

Nothing for me to add--I agree with the others. Either suck it up as a personal learning experience or take him to small claims if the weight of the problem won't be lifted until you seek justice...

 

Good luck and keep us posted.

[FFB]

What would he sue him for? The buyer had a chance to check the condition of the books while he was in the store. If anything, his own negligence would reduce his recovery to the point where the lawsuit wouldn't be worth it.

 

What I would do in this situation if I were him is simply explain to the store owner that I have been a loyal customer of the store for many years, that I spend X dollars per month/year/week in the store, that I have always appreciated his customer service, and that I would propose XYZ as a compromise. I would point out that both the store owner and I were both mistaken for not noticing the missing coupons, so neither of us should bear the full economic brunt of our mutual mistake. I would suggest a reasonable proposal that represented a compromise between his position and mine. Then if it is refused or countered with an unreasonable counterproposal, I would simply: 1) say no thank you, 2) leave my telephone number with the store owner and explain that if he changes his mind that he should call me and let me know, and 3) explain that I will not be shopping at the store anymore because I was not satisfied with the way the problem was resolved.

 

I think you may have a small claims case against the guy, which you can file yourself in Civil Court (you're in Queens right? there's one in Jamaica and another in Kew Gardens). I don't believe his consignment story will shield him from your lawsuit because it's irrelevant what he did with your money after the sale (especially since there was no disclosure that these were consigned books). If you beat him in court he can always sue the guy he took the books from to recover his own losses. Some pertinent facts relevant to your case's chances would be: was there a posted store policy on returns or on the sale of goods being 'as is'? (may be irrelevant, however, based upon the course of dealing, i.e., if the guy has taken back stuff before); were there grades on the books or just prices?.

 

It might be a hassle to drag the guy into court, but it's cheap enough to start the lawsuit to make it worthwhile, and in small claims court, neither side is permitted to be represented by counsel, so you don't have to worry about him laying the smackdown with some cost-prohibitive stalling tactics from some schlub attorney.

 

 

Or you can just name names and we'll avoid his auctions and stores until he sustains losses equivalent to yours....

[mrwoogieman]

That's why I asked whether the grade was on the book or just the price. Coupons out do not grade VF; therefore, if they were marked as VF but were not, it's a fraud on the buyer and the buyer does not need to check them before purchasing them to have a claim against the seller.

 

A fair argument could also be made that the price itself on the comic was a fair indicator of the expected condition without requiring the buyer to check the condition for himself in reliance upon the price listed on the store's label, but additional information would be needed relating to whether there are signs that say all items sold 'as is' or some other verbiage that would put prospective purchasers on notice that they should be damn sure they are getting what they think they are getting. And don't forget that these books were not bought in a vacuum; Shaddy and the owner had a give and take regarding the books and their relative value, so the owner cannot after the fact disown their hidden defects when he was representing them as being a certain grade.

 

JD Fordham Law School 1996

[FFB]

It's not fraud unless the seller knew the coupons were out and I don't see any evidence that the seller knew it. If anything, it could be a mutual mistake, but mutual mistake is not usually grounds for recovery unless the mistake was made without negligence on the part of the buyer. (And even then, most jurisdictions require the mistake to be such that the item about which the parties were mistaken is a different thing entirely than what they thought it was -- a mere variation in the represented condition of the item would, in most cases, not meet this test.) I think the buyer's neglect/failure to look through the comics before buying them would negate any recovery based on mistake. He can certainly make any arguments that he wants, but why go to all of the trouble with uncertain prospects of victory, when there could be a better non-litigation solution to the problem?

 

That's why I asked whether the grade was on the book or just the price. Coupons out do not grade VF; therefore, if they were marked as VF but were not, it's a fraud on the buyer and the buyer does not need to check them before purchasing them to have a claim against the seller.

 

A fair argument could also be made that the price itself on the comic was a fair indicator of the expected condition without requiring the buyer to check the condition for himself in reliance upon the price listed on the store's label, but additional information would be needed relating to whether there are signs that say all items sold 'as is' or some other verbiage that would put prospective purchasers on notice that they should be damn sure they are getting what they think they are getting. And don't forget that these books were not bought in a vacuum; Shaddy and the owner had a give and take regarding the books and their relative value, so the owner cannot after the fact disown their hidden defects when he was representing them as being a certain grade.

 

JD Fordham Law School 1996

[JLA_ALL_THE_WAY]

Make flyers stating the facts of the situation. Include the store/owner's name, address, etc. Show him one. Let him see the stack you're holding along with a staple gun.

 

His move.

 

Rick

[garthgantu]

I like the flyer idea...

 

I can't believe this store owner would even admit that he took the books on consignment and didn't inspect them or have another employee scrutinize them? He just takes the books as-is ? What, does he let the consignor come up with the grade, too? Sheesh.

 

Please let us know the LCS' eBay nic, so we can avoid it like the plague.

[Foolkiller]

This whole situation stinks for you shadroch.

 

From a legal standpoint, let me throw my two cents in just because the other lawyers (fantasyfootballbono and mr. woogie) already have.

 

I think the threat of litigation, even small claims court litigation, might be enough to force the owner to give you the money back for those books. Honestly, I don't buy the story about consignment, and has Lighthouse pointed out, even if true, I don't buy the fact that he can't get you the money back. You have to make out some sort of reasonable cause of action here, and I think you can based on some of the thoughts of Mr. Woogieman. You can allege fraud if grades were attached (although most stores just put prices on) or if the coupons were cut, a material misrepresentation (although see below for success).

 

But... ultimately, part of the responsibility falls on the buyer to inspect the books before buying. Fantasyfootballbono is probably right though with the ultimate legal outcome. There really isn't any cause of action that would succeed here. I don't think there's really any way of actually winning. That's why I say that the threat is more powerful than success, since it's unlikely the owner will actually understand the chances of your succeeding. Plus, why roll the dice.

 

Any reputable store owner would give the money back. Especially based on how much money you spend with the guy. I actually had the situation occurr with Joe (JC comics) a couple of times where coupons were cut and there was an immediate refund.

 

I wouldn't take the low road on this one. Stop doing business with the guy (obviously) and see what happens. I'd try and talk to him one last time before deciding ultimately what to do.

[mrwoogieman]

I agree 100% that a non-litigious solution is preferable to battling it out in court, if it can be done of course. But it seems that this LCS owner has already blown Shaddy off at least once.

 

Again, I don't think the onus is on the buyer to inspect the goods prior to purchase or be out of luck. What if you bought a tv from an electronics store and when you get the box home it's full of bricks (or it's a different make or model, or it's visibly broken); is it the fault of the buyer for not looking in the box before leaving the store, or for not plugging it in to make sure it works before leaving the store? I don't think so, it's an actionable fraud by the seller.

 

And it wouldn't be mutal mistake in this instance (unless the buyer was on notice that all merchandise was sold 'as is'). At best it's a unilateral mistake on the part of the seller, if you believed his sorry consignment 'explanation'. If you choose not to believe the seller's story, then it's fraud on his part for trying to pass inferior product based upon a material misrepresentation of the quality of the goods.

[FFB]

I don't want to get into an argument over the legalities of this situation, but I will say that I don't agree with your analysis of the unilateral mistake issue or whether the TV-box-of-rocks situation is analogous to what happened here.

 

I agree 100% that a non-litigious solution is preferable to battling it out in court, if it can be done of course. But it seems that this LCS owner has already blown Shaddy off at least once.

 

Again, I don't think the onus is on the buyer to inspect the goods prior to purchase or be out of luck. What if you bought a tv from an electronics store and when you get the box home it's full of bricks (or it's a different make or model, or it's visibly broken); is it the fault of the buyer for not looking in the box before leaving the store, or for not plugging it in to make sure it works before leaving the store? I don't think so, it's an actionable fraud by the seller.

 

And it wouldn't be mutal mistake in this instance (unless the buyer was on notice that all merchandise was sold 'as is'). At best it's a unilateral mistake on the part of the seller, if you believed his sorry consignment 'explanation'. If you choose not to believe the seller's story, then it's fraud on his part for trying to pass inferior product based upon a material misrepresentation of the quality of the goods.

[mrwoogieman]

I don't want to get into an argument over the legalities of this situation, but I will say that I don't agree with your analysis of the unilateral mistake issue or whether the TV-box-of-rocks situation is analogous to what happened here.

 

 

-- I'm a litigator, no one EVER agrees with me!