My husband decided to get me a puppy for my birthday. We found one we liked and I wrote a check for a deposite on this puppy and put it in an envelope right away. We found out the next week that we were pregnant!!! Later that week my husband sent out all of our bills, and with that the check. I realized what he had done right away and emailed her as soon as possible. I told her our good news and that we were not going to get a puppy at this time and asked her not to cash the check. She replied and said she does not give refunds on deposites. During all of our discussions she told me I could send as much as I'd like as a deposite and she NEVER stated that the deposite was non-refundable. She sent us a contract saying the deposite was non-refundable (which of course I did not sign!!). Is there anything legally we can do? I put a stop payment on this check before she deposited it but it still went through. We need that money, for God's sake we are pregnant. Am I just out of luck?!
2007-11-01 09:45:41 · 8 answers · asked by Mimi 2 in Politics & Government ➔ Law & Ethics
First, I would find out if the stop payment actually happened before the check went through. If it did, you ought to be able to be reimbursed by the bank since it would be their error.
Second, if she is running a business you might be able to strong arm your deposit back by threatening contact with the BBB or even plain old bad publicity.
Third, you can go to small claims court. Make sure you ask not only the amount of the check, but also the amount you paid for the stop payment, and any fees associated with recovering the money.
I think the key in your story is that you told her prior to her receiving or cashing the check that a mistake had been made. You never intended to send the money. She then ignored you and took the money anyway. I think you have a claim and will be able to get it back.
2007-11-01 10:01:53 · answer #1 · answered by Boom Blatz 5 · 1⤊ 1⤋
A classic mailbox question!! This sounds like a bar question to me. I assume it's for a law class...
You say you mailed a deposit...the key fact we need is why you mailed it.
If you mailed it in response to offer to sell you the puppy, then you have a contract, because an otherwise proper acceptance of an offer is deemed recieved when mailed.
However, rescinding an OFFER is effective when received. So if your mail was an OFFER, the recesion is effective if it was received before they communcated acceptance to you.
So....If they offered to sell you the puppy first...you're out of luck. However, if you sent the deposit in response to say, a general advertisment, you win becasue ads are not offers.
So it depends on what happened before hand.
The fact that there is no written contract is not going to help you, since the check and emails are likely enough to satisfy and statue of frauds question.
Now as to the remedy....Can they keep the deposit? They can if the contract has the "no refunds clause" and it's not punitive. Generally, those clauses are enforced (as "liquated damages clauses"). But....it would have to be in the original offer, not somrthing they mailed you later.
Failing that, they get to do an "action on the price" since they still have the puppy (UCC..702?? or there abouts). They can get difference from the market price and what you paid, they can sell and get the difference, or if they can prove they could have sold the puppy plus the addtional puppy, then they, as a lost volume seller can collect the lost profit, without any sale.
A lost volume puppy! I love it. I wonder if a specificaly bred puppy is a specialty good.
Good luck.
2007-11-01 18:20:41 · answer #2 · answered by tallthatsme 4 · 0⤊ 0⤋
I am not a legal advisor but from experience, when you give someone a deposit it is for a reason (to save whatever it is your buying, from someone else buying it). Even though you did not sign the contract, it still states that it is non-refundable. It is common sense and a rule of thumb that a deposit is always non-refundable unless specifically stated otherwise. BTW Congrats on the baby.
2007-11-01 16:56:25 · answer #3 · answered by ksiskris 1 · 0⤊ 0⤋
Since it was stated that it was a deposit it should be understood that it is non-refundable unless otherwise stated. A deposit is your guarantee that you will fulfill your end of the agreement. She is not obligated to release you from the agreement and is normally entitled to keep the deposit.
By the way, placing a stop payment on a check that was freely issued can be construed as an attempt to defraud and can subject you to civil and criminal issues.
2007-11-01 16:56:22 · answer #4 · answered by davidmi711 7 · 0⤊ 0⤋
If you didn't sign a contract then she can't legally make you pay the deposit. As long as you did the stop payment at the bank I wouldn't worry too much - she doesn't have your money. But - I would keep everything (papers, e-mails, dates/times of phone calls, etc) just in case she decides to take you to small claims court.
2007-11-01 16:54:51 · answer #5 · answered by Anonymous · 0⤊ 2⤋
I think you are out of luck. Once that check went in the mail you are basically accepting her offer to purchase the dog. You should buy the puppy and sell it.
2007-11-01 16:56:31 · answer #6 · answered by davgel2000 1 · 0⤊ 0⤋
the breeder had nothing to do with your having a baby....a pet deposit is for her to hold yout first choice until it is ready to go..she is not responsible to refund ...suggest you ask around if someone else wants to "do the deal"...your deposit is your word.....would you want less?
2007-11-01 18:36:04 · answer #7 · answered by sheridansheridansheridan 6 · 0⤊ 1⤋
Make a phone call to the district attorneys office if you have to, they can straighten it out very quickly.
2007-11-01 16:58:15 · answer #8 · answered by Oxl 7 · 1⤊ 2⤋