Retailor W sold my bikes!

[Bill Mee]

Jurisdiction

New Hampshire

Background:
I ordered two bikes from the retailor W three weeks ago for store pick-up. When I went to pick them up, I asked if they were assembled. They said no. I asked them to have the bikes assembled. They took my phone number and told me that I would get a call when they were ready. They also mentioned that the assembler was on vacation so there may be a delay. In the subsequent three weeks, I called the store a handful of times to inquire the status of the bikes. The reps always told me that they'd check and call me back, but they never did. I finally had enough today and asked to speak with a supervisor to call me back. The supervisor finally called back after a six-hour wait, and told me that she couldn't find my bikes in the store. She believed what happened was that when the assembler was on vacation, they hired external help to assemble the bikes. The external help put the assembled bikes on the sales floor and were subsequently purchased by others. The supervisor processed a refund for the original order.

After I hung up with the supervisor, I thought about it more and now believe I deserve compensation because
1. Those bikes were my property as I had already paid for them (and in their record shown as 'picked up'); they sold them without my consent.
2. Bikes are extremely difficult to locate for a reasonable price right now. The bikes I ordered were already out of stock, and the supervisor said that there's no visibility when they'd be re-stocked, if ever. In order to get a similar bike, I will have to pay 2x - 3x the price at other outlets.
3. The emotional stress in the past three weeks and into the future, until I get the replacement bikes, as my kids had been on my tail for their new bikes for months, and they are utterly disappointed by W's snafu.

Questions
1. Does this sound like a winning case (i.e the chance of a decision for me is greater than 50%) if I brought it to my local small claims court?
2. Should I sue the W headquarter or W the local store?
3. Is it reasonable to include compensation for emotional stress in the claim?

I think I will call the store again tomorrow to ask to speak with the store manager and see if s/he can make it right. Just trying to plan the next steps if the store manager refuses to compensate me.
Thanks in advance!

 

[adjusterjack]

Post a copy of your purchase contract (redact any identifying information) and let's see where that goes.

I'm not going to speculate without seeing that, though other responders might.

 

[Tax Counsel]

Background:
After I hung up with the supervisor, I thought about it more and now believe I deserve compensation

This is a contract matter. You had a contract to buy the bikes and the terms of that contract are important. I don't have the contract to read so I cannot say if the seller breached the contract. But assuming that the seller did breach the contract then, absent something specific in the contract that limits your remedies, what you are entitled to get is what it would take to get the benefit of the bargain you had with the seller.

1. Those bikes were my property as I had already paid for them (and in their record shown as 'picked up'); they sold them without my consent.

The store was obligated to sell the bikes to you per the contract, but as the store had not yet delivered them to you they were not yet yours.

2. Bikes are extremely difficult to locate for a reasonable price right now. The bikes I ordered were already out of stock, and the supervisor said that there's no visibility when they'd be re-stocked, if ever. In order to get a similar bike, I will have to pay 2x - 3x the price at other outlets.

The usual remedy here would then be to buy the bike at the cheapest seller that you can find and then seek from the first seller the amount of money it would take to give you the benefit of the deal you had. For example, suppose you were to pay $250 for each of the two bikes for a total of $500. You get the refund for the $500 and then go out to get the bikes at the cheapest place that has them for sale now, which let's say is $750 per bike. Buying those replacements is called cover in contract law. So you end up spending $1,500 for the bikes when you should have only paid $500 for them. You'd sue the first seller for the $1,000 difference so that in the end you have the two bikes you wanted and spent only the $500 that you had agreed to pay for them.

3. The emotional stress in the past three weeks and into the future, until I get the replacement bikes, as my kids had been on my tail for their new bikes for months, and they are utterly disappointed by W's snafu.

You don't get anything in this kind of dispute for emotional distress or disappointment.

 

[Bill Mee]

Post a copy of your purchase contract (redact any identifying information) and let's see where that goes.

I'm not going to speculate without seeing that, though other responders might.

Thanks for your reply!

The order was placed online and I wasn't aware of any TOS at that time. That said, I did find this link that may be what you refer to:
Walmart.com Terms of Use

 

[Bill Mee]

This is a contract matter. You had a contract to buy the bikes and the terms of that contract are important. I don't have the contract to read so I cannot say if the seller breached the contract. But assuming that the seller did breach the contract then, absent something specific in the contract that limits your remedies, what you are entitled to get is what it would take to get the benefit of the bargain you had with the seller.



The store was obligated to sell the bikes to you per the contract, but as the store had not yet delivered them to you they were not yet yours.



The usual remedy here would then be to buy the bike at the cheapest seller that you can find and then seek from the first seller the amount of money it would take to give you the benefit of the deal you had. For example, suppose you were to pay $250 for each of the two bikes for a total of $500. You get the refund for the $500 and then go out to get the bikes at the cheapest place that has them for sale now, which let's say is $750 per bike. Buying those replacements is called cover in contract law. So you end up spending $1,500 for the bikes when you should have only paid $500 for them. You'd sue the first seller for the $1,000 difference so that in the end you have the two bikes you wanted and spent only the $500 that you had agreed to pay for them.



You don't get anything in this kind of dispute for emotional distress or disappointment.

Thanks a lot for your answers! I thought the bikes were my property because bike assembly is an optional service and is rendered only after a bike is purchased from W. That is, there is no mentioning of 'bike assembly' in the order. The typical flow is to bring your bike and its recipe (that proves it's bought at W) to the store to request assembly. In my case, it's kind of short-circuited as I did store pickup and they could just move my bikes from the pickup department to the bike assembly department without me touching them. IMHO, that means they were my property after it left the pickup department. Plus, after I requested assembly, my order was marked as 'picked up' in my order status page.

 

[Tax Counsel]

Thanks a lot for your answers! I thought the bikes were my property because bike assembly is an optional service and is rendered only after a bike is purchased from W.

Generally title to personal goods purchased occurs when the goods are delivered and accepted by the customer, though the contract can specify otherwise. The passage of title to good addressed in Uniform Commercial Code (UCC) section 2-401. NH's version of this provision is at NH statutes section 382-A:2-401. The general rule that this section provides is in subsection (2), the significant part of which states: "Unless otherwise explicitly agreed title passes to the buyer at the time and place at which the seller completes his performance with reference to the physical delivery of the goods,...." So the basic rule here (unless the contract says otherwise) is that the title passes and the goods are yours when you take physical delivery of the goods from the seller. There are some other rules in there for specific situations, but none that seem to match yours.

Even if the bikes had become yours, it would not give you any greater remedy here since you are still left suing to get the value of the bikes -- i.e. what you'd have to pay to get them elsewhere less the refund the store gave you, which using my previous example works out to be the same $1,000.

 

[adjusterjack]

bike assembly is an optional service and is rendered only after a bike is purchased from W.

Did you pay extra for this "optional" assembly service or was it specified as included in your purchase contract.

 

[Zigner]

Questions
1. Does this sound like a winning case (i.e the chance of a decision for me is greater than 50%) if I brought it to my local small claims court?

No. You placed an order that you never picked up. You were refunded.

2. Should I sue the W headquarter or W the local store?

No - see answer to #1.

3. Is it reasonable to include compensation for emotional stress in the claim?

Not even remotely reasonable...you've been watching too many court tv shows.

I think I will call the store again tomorrow to ask to speak with the store manager and see if s/he can make it right. Just trying to plan the next steps if the store manager refuses to compensate me.
Thanks in advance!

It can't hurt...you may get some sort of discount on a future purchase.

 

[zddoodah]

Those bikes were my property as I had already paid for them (and in their record shown as 'picked up'); they sold them without my consent.

Obviously a mistake, but those particular bikes were not your property because possession of them had not yet been turned over to you. And, in any event, you received a full refund.

Bikes are extremely difficult to locate for a reasonable price right now.

I just spent 30 seconds and found numerous reasonably priced bicycles.

The emotional stress in the past three weeks and into the future, until I get the replacement bikes, as my kids had been on my tail for their new bikes for months, and they are utterly disappointed by W's snafu.

First of all, "emotional stress" is not recoverable except in cases of personal injury. Second, teaching kids to deal with disappointment is part of a parent's job.

Does this sound like a winning case (i.e the chance of a decision for me is greater than 50%) if I brought it to my local small claims court?

No. In fact, I'm not even sure what "case" you're talking about. You order three unassembled bicycles and, when the seller was unable to secure assembly, you received a refund. You have no damages.

Should I sue the W headquarter or W the local store?

You can't sue a store (any more than you can sue a car or a television set). Well...you could, but your suit would be dismissed rather quickly. If you had any sort of viable case, you sue the other party to your contract. I don't know who that is.

I think I will call the store again tomorrow to ask to speak with the store manager and see if s/he can make it right.

I would think that, at this point, you'd want to seek out another seller.

 

[Bill Mee]

Thanks a lot, guys, for all your answers, comments, and suggestions. It's pretty clear to me now that I should just find my inner peace.

Just a side note: I posted something on the social media yesterday about my experience, and today a resolution specialist at W sent me an email stating that they were escalating my issue (not clear what that means). We'll see what comes out of that.

Thanks again for your help!

 

[Bill Mee]

Just a quick 'bonus' question on purchase contracts:

How do you find the purchase contract when you place an order online? And how do you find the contract when you walk in a brick and mortar store and buy something? I never paid attention to that, and now I think I may be unknowingly giving away a lot of rights.

 

[adjusterjack]

I posted something on the social media yesterday about my experience, and today a resolution specialist at W sent me an email stating that they were escalating my issue (not clear what that means).

It means that your issue has been elevated one step up the corporate ladder to (hopefully) somebody with the authority to compromise and fix things.

If that doesn't solve the problem come back to this thread and I'll have some suggestions as to how to go higher up the corporate ladder.

How do you find the purchase contract when you place an order online? And how do you find the contract when you walk in a brick and mortar store and buy something? I never paid attention to that, and now I think I may be unknowingly giving away a lot of rights.

When you buy online, the ad and the site's terms of service are your purchase contract. When I buy online I thoroughly read everything the ad says about the product and I look for links to reviews, user manuals and warranties. If I'm spending big bucks I'll look at other vendors of the product and to the manufacturer's website for information.

With walk-in stores it's best to make two trips. First to decide what you want, then go home and research it online, then go back and buy it, at which time you can ask the store people about any services that the store might include. Then make sure those services are handed to you in writing before buying.

 

[army judge]

Just a side note: I posted something on the social media yesterday about my experience, and today a resolution specialist at W sent me an email stating that they were escalating my issue (not clear what that means). We'll see what comes out of that

You're about to receive a very nice gift.

No worries, mate, this gift won't be anything akin to that horse the clever Greeks gave their pals, from Troy.

You'll probably get your bikes back, or some extra moola.

 

[zddoodah]

How do you find the purchase contract when you place an order online?

Sometimes, a "contract" is not a single written document. The simplest and most accurate definition of a contract is a mutual agreement supported by consideration. The questions always are (1) is there a contract, and (2) if so, what are the terms? There may be multiple (or no) documents that evidence a contract. In the case of an online order, there will be records (that you won't have or have access to) of the electronic transaction; you typically get a receipt of some sort by email; and there are site-specific terms and conditions that apply to all electronic transactions, and to which you either expressly or implicitly agree to in order to finalize the transaction. I disagree that the terms and conditions "are your . . . contract." Rather, they either are part of the contract or are evidence of the terms of the contract.

 

[adjusterjack]

In the case of an online order, there will be records (that you won't have or have access to) of the electronic transaction; you typically get a receipt of some sort by email;

You can take screen shots of each page of the ordering process and save them to your computer.

I disagree that the terms and conditions "are your . . . contract." Rather, they either are part of the contract or are evidence of the terms of the contract.

Pedantry, much?

 

[zddoodah]

Pedantry, much?

Not at all.

How many times have you written (correctly) that, just because one doesn't have a written contract doesn't mean that one doesn't have a contract? This goes hand in hand with that.

 

[Bill Mee]

Just a quick update: I got two calls from my local W just now. They were apologetic. I got a gift card for my inconvenience in the first call. In the second call, they further offered discount when the bikes are restocked. I am pretty satisfied with the remedy they offered. This I think is the first time that I personally experience the power of social media in terms of customer service.

Thanks again guys for your advice!

 

[Zigner]

Just a quick update: I got two calls from my local W just now. They were apologetic. I got a gift card for my inconvenience in the first call. In the second call, they further offered discount when the bikes are restocked. I am pretty satisfied with the remedy they offered. This I think is the first time that I personally experience the power of social media in terms of customer service.

Thanks again guys for your advice!

Why do you believe that social media had anything to do with this? It's more likely that your matter was simply working its way up the chain.

 

[Bill Mee]

Why do you believe that social media had anything to do with this? It's more likely that your matter was simply working its way up the chain.

Before the calls today, I was contacted by someone who identified himself as a resolution specialist working with local stores with regard to experiences posted on social media. Plus, before that contact, I did speak with a local supervisor who didn't offer any remedy.

 

[Zigner]

Before the calls today, I was contacted by someone who identified himself as a resolution specialist working with local stores with regard to experiences posted on social media. Plus, before that contact, I did speak with a local supervisor who didn't offer any remedy.

Alright then - glad it worked for you