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x_harmoni_x · Jan 26, 2009, 09:50 AM

First I am going to give some background information.
In August we disccused wanting to sell our car. One of our friends said he would like to buy it. We gave him a price. A month went by and we had not heard from him. A week later he came by the house with $750. We made a payment arrangement with him. He was to pay $750 twice a month until the $5,000 was met and then he could take the car. None of this was in writing and he gave us cash. So for the month of September he only gave us $750, then in October he only gave us $300 and in November only $400. He refuses to return our calls. We have no seen him since November first when he gave us the $400. My husband has called him twice and left 2 messages and told him we were going to sell it to someone else. Well we found someone else to buy and it and sold it. I honestly don't want to give the money back to our "friend" because a. we could have sold it 5 months ago, b. we have been storing it for these 5 months and c. we had to dig it out of 4 ft of snow which we wouldn't have had to if he would have continued with our agreement.

My question is does our "friend" have a legal foot to stand on?

ScottGem · Jan 26, 2009, 09:56 AM

This is a hard one. It could go either way. On the one hand, your friend agreed to pay a certain amount but reneged. On the other hand having paid something gives him right of first refusal.

Not having anything in writing is going to hurt. If he sues you, I think you would win, but it's a close call.

Fr_Chuck · Jan 26, 2009, 09:58 AM

Yes, you are to repay all the money they paid to you.

Several really bad errors,
1. nothing in writing
2. after they did not follow up on verbal plan you did not ask for something in writing and then you did not stop agreement then.
3. there was nothing in writing, no registered letter or anything telling them that you were going to sell.

this8384 · Jan 26, 2009, 10:23 AM

Yes, you need to return the money. Get something in writing stating that it is a full refund and you owe him nothing more.

I'd rather give him his money back than get sued, have to give it back and then have a judgment hanging over my head.

Justice Matters · Jan 26, 2009, 01:26 PM

Your single biggest problem is the fact that you have a verbal agreement. If this was a written agreement then keeping some of all of his deposit would be a lot easier. (That is if the court interprets the monies paid strictly as a deposit as opposed to some type of alternative financing arrangement.)

When it comes to keeping deposits the seller must generally prove it has incurred some type of damage. Storage costs might work for a car dealer but likely not for yourself.

Your best argument would be if you ended up selling the car for less than $5,000 but your friend could always argue that if you had worked with him he would have paid the $5,000 in full eventually (and plaintiff's do have an obligation to mitigate their damages).

Please note that if you sold the car for more than $5,000 then you should be returning all of his monies.

The other posts are all very insightful. In particular, this8384 makes a good point about refunding the money to avoid being sued yourself.

x_harmoni_x · Jan 26, 2009, 01:40 PM

We sold the car for exactly $5,000. It did end up costing us money since the battery in it froze and exploded because he never came to get the car. So we had to buy a new battery for it. My husband called and left 2 messages for him and also told him we were going to find another buyer since he wasn't paying us. He has refused communication with us for over 2 months now going on 3 months. Yes we should have gotten something in writing when we made the agreement, but we thought we could trust him.

this8384 · Jan 26, 2009, 02:09 PM

That's not a valid point. The battery froze because no one started the car; you have to take partial blame for that. Just because he didn't come to get the car doesn't mean you didn't have any responsibility; if you never made the agreement with him, the battery still would have frozen and you still would have had to go buy another one.

I still say going to court over this isn't worth it. Are you really willing to have a judgment against you for $1450?

x_harmoni_x · Jan 26, 2009, 02:43 PM

I am willing to give him back $1,000. If we knew he wasn't going to pay us the car would have been gone before the winter and the battery wouldn't have froze.

this8384 · Jan 26, 2009, 03:01 PM

Originally Posted by x_harmoni_x

I am willing to give him back $1,000. If we knew he wasnt going to pay us the car would have been gone before the winter and the battery wouldnt have froze.

I suppose it's better than nothing. But just so you know, that doesn't mean he can't come back to sue you for the remaining balance of $450. If it goes that far, a judge may only allow you to deduct that amount for the new battery; you can't "bill" him, so to speak, for having to shovel the car out of snow, the judge will tell you that you shouldn't have let 4 feet build up around it.