Unjust Enrichment ...Or What?

[Muffuah]

This is a Maryland issue:

1) I have a graphics business offering all sorts of graphic design "products".
2) A musician came to my shop and asked me to create a design for a shirt to sell at an upcoming event (a benefit-concert). He said that he wanted to order 200 shirts. While discussing aspects of the upcoming event, future sales, shirt options, design options etc. it was indicated that they expected the shirts to sell-out within an hour of the event's starting. When I asked why he didn't order more shirts, he said that it was all he could afford. I told him that I knew of someone who was recently widowed, that she got a small insurance pay-out and she might be willing to invest if I could "work a deal" that would be good for her.
3) I created the design, approached the widow about a deal I had in mind, she indicated interest, then I contacted the musician. I sent a copy of the proposed design and told him that the widow was interested. I suggested a meeting.
4) He liked the design and we agreed to meet to discuss options.
5) At the meeting (with him and two of his “assistants”), I suggested two options: Pay for 200 shirts, the design and the printing and proceed as originally planned or the widow and I would buy 1,000 shirts, pay for their printing and we would split the profits equally. If he chose the latter, he would not have any up-front costs, BUT the first proceeds would have to repay the initial investment i.e. We would not share any profits until the money for buying and printing the shirts was returned.
6) He chose the 1,000 shirt option. I bought the shirts, had them printed and delivered them before the concert.
7) He sold them.
8) The initial cost to me and the widow was about $5,500. My half of the profits equaled about $7,500.
9) After many attempts to collect, I have not received ANY money in return.
10) I am paying the widow $400 per month for 11 months- Since I talked her into this deal, I’m making sure that she isn’t harmed (she invested $4,400).
11) There was no written contract- Though it will be relatively easy to prove the agreement/working relationship.
12) I cannot afford to hire a lawyer and I do not want to allow someone to take advantage of me in this way.

There are several more elements to this story, but I’ve whittled it down to a point where I think/hope you will get the gist of my predicament.
Here are my questions:

(1) What tort(s) I should include in my complaint? Later, I will visit a law library to research the elements of proof I’ll need and how to write the complaint assuming I take this to circuit court.
(2) Should I settle for the limit of $5,000 for the simplicity of “Small Claims” versus navigating the complexity of a higher court in an effort to get the full amount due me?
(3) Should I ask for a jury?
(4) Should I include his assistants as defendants in the complaint?
(5) Again, there is more to this story, but given what I've offered here, does anyone have an idea as to why the DA would have declined to accept this as a criminal matter?

Any other recommendations, suggestions or advice is welcomed. I thank you in advance for your assistance.

 

[quincy]

This is a Maryland issue:

1) I have a graphics business offering all sorts of graphic design "products".
2) A musician came to my shop and asked me to create a design for a shirt to sell at an upcoming event (a benefit-concert). He said that he wanted to order 200 shirts. While discussing aspects of the upcoming event, future sales, shirt options, design options etc. it was indicated that they expected the shirts to sell-out within an hour of the event's starting. When I asked why he didn't order more shirts, he said that it was all he could afford. I told him that I knew of someone who was recently widowed, that she got a small insurance pay-out and she might be willing to invest if I could "work a deal" that would be good for her.
3) I created the design, approached the widow about a deal I had in mind, she indicated interest, then I contacted the musician. I sent a copy of the proposed design and told him that the widow was interested. I suggested a meeting.
4) He liked the design and we agreed to meet to discuss options.
5) At the meeting (with him and two of his �assistants�), I suggested two options: Pay for 200 shirts, the design and the printing and proceed as originally planned or the widow and I would buy 1,000 shirts, pay for their printing and we would split the profits equally. If he chose the latter, he would not have any up-front costs, BUT the first proceeds would have to repay the initial investment i.e. We would not share any profits until the money for buying and printing the shirts was returned.
6) He chose the 1,000 shirt option. I bought the shirts, had them printed and delivered them before the concert.
7) He sold them.
8) The initial cost to me and the widow was about $5,500. My half of the profits equaled about $7,500.
9) After many attempts to collect, I have not received ANY money in return.
10) I am paying the widow $400 per month for 11 months- Since I talked her into this deal, I�m making sure that she isn�t harmed (she invested $4,400).
11) There was no written contract- Though it will be relatively easy to prove the agreement/working relationship.
12) I cannot afford to hire a lawyer and I do not want to allow someone to take advantage of me in this way.

There are several more elements to this story, but I�ve whittled it down to a point where I think/hope you will get the gist of my predicament.
Here are my questions:

(1) What tort(s) I should include in my complaint? Later, I will visit a law library to research the elements of proof I�ll need and how to write the complaint assuming I take this to circuit court.
(2) Should I settle for the limit of $5,000 for the simplicity of �Small Claims� versus navigating the complexity of a higher court in an effort to get the full amount due me?
(3) Should I ask for a jury?
(4) Should I include his assistants as defendants in the complaint?
(5) Again, there is more to this story, but given what I've offered here, does anyone have an idea as to why the DA would have declined to accept this as a criminal matter?

Any other recommendations, suggestions or advice is welcomed. I thank you in advance for your assistance.

Muffuah, you do not need to start a new thread for each question you have that relates to the same legal issue. In fact, doing so makes it harder for the members of the forum, who can help you better if all information is put in one place. So, please do not start any additional threads for this same issue - just add all other questions to this thread. Thanks.

For the benefit of others, here are links to Muffuah's three other threads on this same legal matter:

From 3/14/15: https://forum.freeadvice.com/civil-litigation-46/subpoena-before-complaint-612899.html

From 11/12/14: https://forum.freeadvice.com/civil-litigation-46/can-third-party-compelled-produce-make-available-evidence-civil-case-610444.html

From 11/11/14: https://forum.freeadvice.com/civil-litigation-46/file-criminal-civil-first-610433.html

The reason the police are probably not looking at this as a criminal matter is that right now it is a contractual matter. There has been a breach of an oral contract.

You gave the fellow shirts to sell that you printed up at your cost (and the widow's cost). The fellow who took the shirts you and the widow paid to print up has apparently failed to date to fulfill the terms of the oral contract (i.e., you and the widow would pay for the shirts, the guy would sell the shirts, the guy would pay you the amount invested plus profit).

You have several hurdles to overcome with a civil action. One hurdle is that first you need to prove you had an agreement with the tee-shirt seller. A written agreement is often needed (especially when the sale of goods is over $500). If you can prove an agreement was made, you still need to prove what the terms of the agreement were. Because you did not get the agreement in writing or signed by the tee-shirt seller, this can be a major problem. Another hurdle is that you will have a hard time proving that the shirts that were printed up were actually sold - or how many were sold.

I do not see how the restaurant surveillance video you are looking to subpoena is going to help you. It might indicate that you and the shirt-seller met to discuss the tee-shirts. The video will not have any audio, though (or should not have audio), to support what was discussed at that meeting.

Whether to file your suit in small claims or not is a decision you will have to make on your own. It is important to note that even if you win your action - even if you are able to prove to the court the existence of the oral contract and prove the amounts you and widow invested and prove the fellow sold the tee-shirts and breached the agreement by failing to pay you back - even if you can prove to the court your losses and win a judgment - you still will need to collect the money from the tee-shirt seller. This will leave you right back where you are now, albeit with the power of a court judgment to assist in the collection of what is owed.

Here is a link from The Maryland People's Law Library, with information on contracts for you to review: http://www.peoples-law.org/contracts-0

Again, if you have additional questions, please add them to this thread. Thank you.

 

[Muffuah]

Thanks Quincy- You and I had a discussion about new threads back in November- I saw each thread as a question for each part of my over-all problem. I didn't realize that later questions would be viewed/considered- I am semi-active in a couple of other forums that deal with graphics. If you asked a question there and later added a question relating to that original question, in that original thread... you'd Never get the second answer. Not that you need an excuse, but I'm offering the reason for my offense (Nolo Contendere) with sincere apologies. (Tip-O-The-Hat).

So... You said in your answer and it was indicated in the link you provided that the sales of goods worth more than $500 require a written contract [to be challenged in court?]. Wouldn't my argument be that I didn't sell anything? When I gave him the shirts, technically, we both owned them. From the time I delivered them, he had a responsibility to sell them. After he sold them, his responsibility was to 1). Pay back the original investment and 2). To give me 1/2 of the profits. i.e. I didn't sell him the shirts; I gave him possession of OUR shirts so that he might fulfill his obligations as my partner. Yes? BTW: I don't mean to be argumentative; I'm asking if the arrangement wouldn't be viewed that way, or at least be presented (and accepted by the court) in that way?

If I can keep my head about me, I'm pretty sure I can overcome the hurdles you mentioned... In Court. I'm mostly worried about navigating all of the things that need to be done before I Get there. Right now, it's collecting the things I'll need to prove my case, finding out what elements I'll have to prove when I get there, how to construct the complaint, how and what to subpoena and whether I need or should do this thing or that. ...Wish me luck. Hopefully, by the time this is finished, I'll be able to afford a lawyer to go about actually getting the money. If not, I'll do the best I can to cross that bridge when I get there.

As for the surveillance video, I haven't seen it, but if it has a clear shot at our table, it will show both: his acceptance to the agreement and what that agreement was. I know that doesn't seem likely to be true, and it almost never would be, but in this one-in-a-million case... it is. ...maybe. ...hopefully.

Lastly, even though I realize that, in the end, I'll have to decide which court to employ I'd still like to get input from those of you who regularly(?) consider this sort of thing. You may know of things that I would never THINK to consider.

Again, many thanks and I promise to never start another thread about this issue again.

 

[justalayman]

As for the surveillance video, I haven't seen it, but if it has a clear shot at our table, it will show both: his acceptance to the agreement and what that agreement was.

unless your agreement involved a written contract and the camera was a very very good camera, no, it wouldn't. It would SHOW you sat at a table with the guy. There will be no audio (or as Quincy pointed out; there shouldn't be)

 

[quincy]

First, Muffuah, I want to apologize. I was remiss in not acknowledging your wife's health issues. I am sorry that your wife is suffering and I am sorry that you are having to devote so much time caring for her. Taking care of a loved one who is suffering from health problems is not easy. I wish both of you the best.

Thanks Quincy- You and I had a discussion about new threads back in November- I saw each thread as a question for each part of my over-all problem. I didn't realize that later questions would be viewed/considered- I am semi-active in a couple of other forums that deal with graphics. If you asked a question there and later added a question relating to that original question, in that original thread... you'd Never get the second answer. Not that you need an excuse, but I'm offering the reason for my offense (Nolo Contendere) with sincere apologies. (Tip-O-The-Hat).

I know every forum operates differently. It is hard to keep track of what is preferred on each. We tend to find it easiest here to have a recent history to refer to, so we are not repeating advice and not providing information that has either already been provided or that is inapplicable based on what has been disclosed so far about a legal situation. Having a fuller picture can help us help you.

But I hope you didn't take my comment as a criticism. It wasn't meant to be.

So... You said in your answer and it was indicated in the link you provided that the sales of goods worth more than $500 require a written contract [to be challenged in court?]. Wouldn't my argument be that I didn't sell anything? When I gave him the shirts, technically, we both owned them. From the time I delivered them, he had a responsibility to sell them. After he sold them, his responsibility was to 1). Pay back the original investment and 2). To give me 1/2 of the profits. i.e. I didn't sell him the shirts; I gave him possession of OUR shirts so that he might fulfill his obligations as my partner. Yes? BTW: I don't mean to be argumentative; I'm asking if the arrangement wouldn't be viewed that way, or at least be presented (and accepted by the court) in that way?

Here is a link to the Uniform Commercial Code, Section 2-201, that speaks to the "statute of fraud" and need for a written agreement instead of an oral agreement when goods are sold with a value over $500: http://https://www.law.cornell.edu/ucc/2/2-201

There is a possibility that, while your agreement with the tee-shirt seller could be voidable, it is also possible the agreement can be enforceable. And it at any rate should be enforceable at least up to the $500. But all facts need to be reviewed to determine the best way to argue that your entire oral agreement is enforceable.

As a note, and to address the title of your thread: Unjust enrichment is not a claim that can be based on an express written or oral contract.

If I can keep my head about me, I'm pretty sure I can overcome the hurdles you mentioned... In Court. I'm mostly worried about navigating all of the things that need to be done before I Get there. Right now, it's collecting the things I'll need to prove my case, finding out what elements I'll have to prove when I get there, how to construct the complaint, how and what to subpoena and whether I need or should do this thing or that. ...Wish me luck. Hopefully, by the time this is finished, I'll be able to afford a lawyer to go about actually getting the money. If not, I'll do the best I can to cross that bridge when I get there.

Here are some more links with information you might find helpful.

This first one is to Maryland's Rules of Civil Procedure. It is often the rules of procedure that cause the most difficulty for those handling a legal action on their own. Small claims courts tend to be more relaxed with the rules and more tolerant of pro se litigants who may fumble with the rules a bit, but the rules are important to know and follow:
http://www.lexisnexis.com/hottopics/mdcode/ (you will have to agree to the terms but access is free)

Here is a link to Maryland courts self-help, with a comparison of the courts to help you determine which court would be proper for your civil action, if or when you decide to file: http://www.courts.state.md.us/legalhelp/smallclaims.html

For a breach of an oral contract, you have three years within which you can file your suit.

As for the surveillance video, I haven't seen it, but if it has a clear shot at our table, it will show both: his acceptance to the agreement and what that agreement was. I know that doesn't seem likely to be true, and it almost never would be, but in this one-in-a-million case... it is. ...maybe. ...hopefully.

I am afraid I don't hold out the same hope you do that the video will prove anything other than you and the tee-shirt seller met. It can help if, in court, the tee-shirt seller says he has never met you before, though.

Lastly, even though I realize that, in the end, I'll have to decide which court to employ I'd still like to get input from those of you who regularly(?) consider this sort of thing. You may know of things that I would never THINK to consider.

Again, many thanks and I promise to never start another thread about this issue again.

You are smart to do research in advance of taking any legal action, Muffuah. It is still a good idea to sit down with an attorney in your area for a review. Perhaps you can find a legal aid clinic or law school in your area with free assistance? It might be worth it for you to check it out.

 

[Muffuah]

Thanks, Just a Layman, but like I said, "One-In-A-Million".

 

[justalayman]

Thanks, Just a Layman, but like I said, "One-In-A-Million".

much much less than that given it is generally illegal to surreptitiously record conversations you are not a party to. Unless whomever might have some penchant for risking going to prison, I suspect your chances reach very near to a 0 possibility.

Under Maryland’s Wiretapping and Electronic Surveillance
Act, it is unlawful to tape record a conversation without the permission
of all the parties. See Bodoy v. North Arundel Hosp., 945
F.Supp. 890 (D. Md. 1996). Additionally, recording with criminal or
tortuous purpose is illegal, regardless of consent. Md. Code Ann.,
Cts. & Jud. Proc. § 10-402.
Disclosing the contents of intercepted communications with reason
to know they were obtained unlawfully is a crime as well.
Violations of the law are felonies punishable by imprisonment for
not more than five years and a fine of not more than $10,000. Civil
liability for violations can include the greater of actual damages, $100
a day for each day of violation or $1,000, along with punitive damages,
attorney fees and litigation costs. To recover civil damages, however,
a plaintiff must prove that the defendant knew it was illegal to tape
the communication without consent from all participants. MD. Code
Ann., Cts. & Jud. Proc. § 10-410

On top of that, unless you have already acted top preserve any possible recording, there is a great likelihood anything that may have been recorded has already been deleted or recorded over.

to your argument that there was no sale of merchandise, well, since you were not partners in any official capacity but merely co-beneficiaries of the agreement coupled with this:

Pay for 200 shirts, the design and the printing and proceed as originally planned or the widow and I would buy 1,000 shirts, pay for their printing and we would split the profits equally. If he chose the latter, he would not have any up-front costs, BUT the first proceeds would have to repay the initial investment i.e. We would not share any profits until the money for buying and printing the shirts was returned.

I ask: what if none of the shirts were sold? Did he get to keep them without paying for them?

 

[Muffuah]

Quincy- Oh My! Your last post will most certainly help. I will spend some time with the links you supplied.

As a note, and to address the title of your thread: Unjust enrichment is not a claim that can be based on an express written or oral contract.

Understood, but given what I've described, might it apply?

Your box is full- I couldn't send you a private message.

Just A Layman- Sorry, I forgot to give you a Tip-O-The-Hat.

 

[Muffuah]

Just A Layman- The whole of this issue took place in Maryland. Here, we can't record audio unless "everybody" is aware of the recording. Hence, I was never relying on audio. The company with the video in question, as a matter of policy, saves all recordings at least 9 months and usually 12. I checked on this back when I still thought there was a real possibility the (26 year-old) kid would pay-up. It is Possible that the video will be helpful because of the way I presented the offers. Again, I haven't seen the video, so I don't know if it will help or not. I believe the possibility is worth the gamble of a subpoena.

I ask: what if none of the shirts were sold? Did he get to keep them without paying for them?

I can't imagine that actually happening, but if it did, I suppose I would be asking for replevin and if granted, I'd try to sell them myself. Ease up- Snide ain't cool.

 

[justalayman]

Muffuah;3322732]Just A Layman- The whole of this issue took place in Maryland. Here, we can't record audio unless "everybody" is aware of the recording. Hence, I was never relying on audio. The company with the video in question, as a matter of policy, saves all recordings at least 9 months and usually 12. I checked on this back when I still thought there was a real possibility the (26 year-old) kid would pay-up. It is Possible that the video will be helpful because of the way I presented the offers. Again, I haven't seen the video, so I don't know if it will help or not. I believe the possibility is worth the gamble of a subpoena.

do you have a certified lip reader? Unless you can prove what was actually said, nothing in video is going to help you. I can propose a plausible conversation that does not include agreeing to what you are claiming given any actions one might see on a video. Seriously, the courts are not going to play; guess what the mime is acting out

I can't imagine that actually happening, but if it did, I suppose I would be asking for replevin and if granted, I'd try to sell them myself. Ease up- Snide ain't cool.

Oh, so in other words, if he did not pay you for the shirts, he didn't get to keep them. Care to guess what that means? I'll go ahead and tell you: the sale of merchandise is the basis of your contract.

and not being snide, just realistic.

 

[quincy]

Quincy- Oh My! Your last post will most certainly help. I will spend some time with the links you supplied.



Understood, but given what I've described, might it apply?

Your box is full- I couldn't send you a private message.

Just A Layman- Sorry, I forgot to give you a Tip-O-The-Hat.

I think you have a lot of work ahead of you, Muffuah. That said, I think you have a good possibility of getting the cost of the tee-shirts back, if you can prove you gave the tee-shirts to the fellow to sell and that he did not pay for the shirts in advance. I think it will be harder for you to prove you are entitled to any profit from the sale of the tee-shirts but, as you said, anything is possible.

Here is a link to the legal definition of unjust enrichment and, yes, if your oral contract is found void, an unjust enrichment claim is something that could potentially be considered, so you can recover the cost of your initial investment: http://www.law.cornell.edu/wex/unjust_enrichment That said, some courts in some states will not consider an unjust enrichment claim when, in a breach of contract action the contract has been found unenforceable. The claim will be dismissed. But I have not checked to see if this is true in any Maryland courts.

One difference between an unjust enrichment claim and a breach of an oral contract claim is that oral contracts center on the communication between the parties that outline definite terms of an agreement, while unjust enrichment claims are often based solely on the conduct or actions of the parties.

I will try to make room in my private message box so I can receive additional messages, but I only respond to legal questions on the forum board.



edit to add: Thank you for the private message, Muffuah. Take care.

 

[justalayman]

A pm to me from the op;

It looks like a fight is brewing on that thread. Thought I'd try to fix it here:

I tried to make it clear: there is A LOT more to this story than what I submitted in the thread. I'm only posting on this forum because I'd like some constructive advice about doing something that I am unqualified to do but, none-the-less, feel I have to do.

I don’t need a lip-reader- certified or otherwise. I’m not relying on anything being said!! As it turns out, there was a camera very close to the table at which we were sitting. As it turns out, I know those cameras were installed just a few weeks before the meeting, so they're of a recent technology. I was there when they were being installed and I believe they're capable of supplying adequate resolution for my purposes. As it turns out, there were three offers made that night- each on their own sheet of paper- with letters that were about two inches tall. I laid the three sheets of paper out on the table, he pointed, actually touching, the offer he chose then shook my hand right afterward. After that, I shook his manager’s hand. Three minutes later, we were paying our bill. THAT is the reason I’m insisting that this is possibly a one-in-a-million circumstance.

And, if you think that last paragraph was meant to be a bit ...Snide, you'd be wrong again.... I was going for Sardonic.

Listen-up: I’m 60 years old. I know snide when I see it and when I say “Snide” I mean resident troll (you've offered a daily average of 10.27 responses here over an entire 9 1/3 years and all of the ones I suffered through were of the snide, sarcastic variety, hence the terms, "resident" and "Troll"). I also recognize Pompous, pretentious, snobbish and arrogant; none of which I’m eager to find here. Remember: I’m looking for helpful, constructive advice and I suspect I may know the reason I’m not getting it from you: after 9 1/3 years, you’re still... Just A Layman! Ease Up!

So, you have no contract in writing yet you had three written contracts with a font 2" tall; seriously?


You are missing the point of a contract being required to be in writing. It isn't that a verbal contract is enforceable if it can be proven. It is that for there to be an enforceable contract it must be a written contract, which you admit you do not have.

 

[latigo]

As expected Q has given you both sound legal and practical advice.

I will only add to explain why "unjust enrichment" is not a viable cause of action in this instance. Briefly, unjust enrichment is an equitable doctrine that only applies when there is no contract, yet someone has directly benefited/enriched at the expense of another under such circumstances as to deny the latter relief would be - guess what? - unjust!

Example: "A" (a fencing contractor) is engaged by "B" to erect a chain link fence on "B's" property. "A" mistakenly starts to work erecting the fence on "C's" property. "C" silently stands by serendipitously counting his blessings until the job is completed.

In theory "A" would have a claim against "C" based on the mentioned equitable doctrine. However, not necessarily for same figure "B" had agreed to pay. But rather (again theoretically) under a related equitable doctrine known as "quantum meruit", id est, the actual value or benefit received by "C". Who, had he been absent during the fence construction, and hence unaware, might in turn sue "A" for the cost of its removal.

Needless trivia.

All of which brings to mind an actual such incident that occurred in this city some years back.

Two abandoned, eyesore, corner gasoline filling stations (Veltex and Sinclair) sat kitty-corner occupying prime commercial real estate.

A contractor hired to raze the Veltex station and remove the underground fuel tanks mistakenly left it standing while demolishing the other.

Question: If the owner of the Sinclair benefited by the removal (which was obvious) would the errant contractor have claim for quantum meruit/unjust enrichment?

And here is the final kicker. This was in the period when the convenience stores "Circle K" and "7-Eleven" were expanding northward. Unbeknownst to one another each secretly purchased a kitty-corner lot and began construction. Mamma mia!

 

[Muffuah]

Well, I may have a small new wrinkle in this story:

Rumor has it that this fellow is now offering new shirts with my design (he sold out of the ones I had printed). Is that design still mine? If so... were you were in my shoes, how would you remedy THAT situation? <---A new, clever way of asking, "What can I do about that?"

Academic Question: Could I get in trouble for publicizing these experiences i.e. newspapers, signs, fliers, website etc.? If not, I might have another, and maybe, better way to deal with this mess.

Thanks again.

 

[justalayman]

Well, at least with this the lack of a written contract would work in your benefit but hey, since I'm just a layman I'll not bother to try to exain why. I probably have no idea what I'm talking about.