Consumer Law, Warranties Verbal Contract

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JohnnyPecs

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I'm a military member stationed and living in Virginia. I was heavily involved in the 9-11 (and subsequent) rescue and recovery operations at the Pentagon. I was contacted by a colleague (we share a professional association affiliation) who represented himself as a "free lance" writer, as well as detailing potential contacts in the magazine world leading me to believe he was accomplished. After some discussions, I asked if he would be interested in writing a book based upon that day's events. Because of our professional affiliation (level of trust), I entered into a verbal contract with him over the phone (he lives in Tennessee) to develop my story into a book and agreed to provide source material and pictures. He then took that agreement and entered into a formal contract with a small specialty publishing company that was exclusive to him (I am not mentioned, nor did I sign any part of the contract). I provided an initial amount of material and was working towards additional sources when I found his writing resume to actually be non-existent and to the point where I think it was mis-represented (I did ask questions, but not enough of the right questions!). I also believe his lack of credentials will hurt both the story and my 26-year reputation (this is my opinion based upon samples of his "forward" for the book that he e-mailed me). I e-mailed him expressing my deep concerns and intent to stop all participation, and I asked that he not use any of my material as I had withdrawn my consent for its use. He has responded he "has a mind" to pursue the verbal contract; I think he will attempt legal action, and I think he has some liability to the publisher I may not be aware of. I have not returned his calls or his e-mails as I don't want to make this any worse than it certainly appears. I value your counsel as to whether we did have a verbal contract, if I may have some liability with the publisher, and any other advice you feel relevant. Thanks!
 
Interesting story and I thank you in advance for your assistance with the 9-11 tragedy. Being in NY, I can appreciative firsthand the significant efforts of our military in our country.

To begin, it is extremely difficult to enforce verbal agreements that do not fall within the statute of frauds, those that are for more than $500, cannot be fulfilled within a year, etc. simply because it is so difficult to state what the exact deal is.

Additionally, you may have a claim or counterclaim against him for fraud if he chooses to sue you. Did he make any representations that were more than just "puffing" such as something specific, e.g. "I was the assistant editor of the Los Angeles Times" when he wasn't. Did you know that he was contracting with book editors and entered a formal agreement? Was the deal a work in progress agreement or was there something quite firm and formal? Did you accept any payment from him? Was the agreement partially performed? These are questions which the basis of success for legal action is usually begun.
 
Thanks for the quick reply. The day of the attack defies words; our training and discipline were certainly tested (the wreckage of the cockpit of the aircraft came to rest against the outside walls of our office).

I certainly have no desire to sue this person in any way. My opinion is he did not make any specific claims to the level you refer, however, in several discussions where we spoke of writing, contracts, agents, etc., he never took the opportunity to respond truthfully. In the military, not being forthright is as bad as lying; omission is simply an integrity issue where there is no quarter.

I knew he was going to attempt a book contract, but the details were his doing without consultation with me, and he signed the agreement without my knowledge or consent. No money has changed hands and I thought the deal was a work in progress; we did not have formal dates or deliverables, nor has he produced anything except a forward glorifying himself. I would suggest I did meet one condition, that being my extensive notes from the first day's activities. He has not produced anything with those note, therefore, I felt it was time to terminate the agreement before he actually delivered something that could be construed as work we agreed upon.

We had an informal agreement to split any proceeds from the work. He just sent me a contract he wrote himself clearly stating all monies will be his, additionally, he's attempting to make claims to the story and any future rights to interviews, etc. I consider that the final straw and I believe I will be terminating this association and I'll just see what he decides to do (he's believes himself to be a junior jurist as he's filed in court several times due to divorce proceedings). I'm sorry he and I just may not be able to reach an accord, so be it.

I appreciate your counsel and look forward to any comments concerning my reply. I think I'll also be preparing my own manuscript and dealing with the agents and publishers the right way! I hope you and yours have a wonderful Holiday Season!
 
Omission with the intent to mislead can constitute fraud. Technically ex-coach George O'Leary of Notre Dame went undefeated as coach of the Notre Dame football team. What he omitted was that he never coached a game!!!

It sounds to me like he will have a problem. He will probably say that he relied on promises made by yourself but remember, he is the plaintiff and has the burden of going forward. A lack of any documentation for a deal of such magnitude would create a great problem for any plaintiff, IMHO.

Please don't mistake our discussion for being a consultation or "counsel" -- this is strictly an informal discussion with someone who happens to be an attorney. I cannot provide you adequate legal counseling without reviewing all the documents and conducting a true consultation properly.
 
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