Vehicle Doesn't Have Tow Package as Promised

[mcmoody]

What is the name of your state (only U.S. law)? Texas

I have a questions regarding a truck we purchased - when negotiating price, sales person told us it had a tow package (which increased vehicle value by $400) - when we got home and tried to connect a trailer, we discovered it does not have promised tow package.

We called sales person immediately, who said he could not give us the money to buy one - that he can't guarantee what he says is right - but he would give us a tow package off another truck when it came into dealership on a trade if same size. We have waited months, exchanged an e-mail and many phone calls, always told to wait, and now we are told it has been too long. The sales person says to take it up with his manager, who in turn tells us it is the responsibility of the sales rep. Do we have a case for small claims court?

 

[justalayman]

was this a new or used vehicle? was this at a factory authorized dealership or an independent sales lot? If a dealership, was the brand of truck the same as the dealerships line of vehicles?

 

[mcmoody]

It was a used 05 Chevy Colorado purchased from a Chevrolet dealership.

 

[justalayman]

I should have asked previously but do you have anything in writing to support the claim that it has a tow package?


If you do, I would think it a very good case to sue for.

If you don't, you will have to prove that the salesman did represent it as having a tow package and your purchased the vehicle due to that material misrepresentation.

yes, a salesman, or more accurately, his employer can be held to the statements if it is provided as a statement of fact and you depended on that statement as your reason to purchase the vehicle and he was aware of the requirement of the inclusion of the equipment.

so, if you go to a dealership and say; "I'm looking for a truck set up to tow my boat" and he sells you the vehicle with the statement, "this little beauty right here is just what you need. It has a trailer towing package on it and is more than capable of towing your boat"

if the truck he just presented is not as he stated, first, he is misrepresenting the vehicle. Then, there is what is called an implied warranty of fitness.
Implied Warranty of Fitness

When a buyer wishes to use goods for a particular, nonordinary purpose, the UCC provides a distinct implied warranty of fitness (§ 2-315). Unlike the implied warranty of merchantability, the implied warranty of fitness does not contain a requirement that the seller be a merchant with respect to the goods sold. It merely requires that the seller possess knowledge and expertise on which the buyer may rely. (especially because this was a Chevy at a Chevy dealership, he can be considered to possess knowledge and expertise on a Chevy truck)

For example, one court found that horse buyers who indicated to the sellers their intention to use the horse for breeding were using the horse for a particular, nonordinary purpose (Whitehouse v. Lange, 128 Idaho 129, 910 P.2d 801 [1996]). The buyers soon discovered that the horse they purchased was incapable of reproducing. Because the court found this use of the horse to be nonordinary, the buyers were entitled to an implied warranty of fitness.

Before a court will imply a warranty of fitness, three requirements must be met: (1) the seller must have reason to know of the buyer's particular purpose for the goods; (2) the seller must have reason to know of the buyer's reliance on the seller's skill and knowledge in furnishing the appropriate goods; and (3) the buyer must, in fact, rely on the seller's skill and knowledge. Even when these requirements are met, courts will not imply a warranty of fitness under certain circumstances. A buyer who specifies a particular brand of goods is not entitled to an implied warranty of fitness. Also, a buyer who has greater expertise than the seller regarding the goods generally is precluded from asserting an implied warranty of fitness, as is a buyer who provides the seller with specifications, such as a blueprint or design plan, detailing the types of material to be used in the goods.

so, depending on what you can prove the salesman said and what you told him you needed in a truck, you could have a good claim based on the implied warranty of fitness argument.

and no, it is not the responsibility of the salesman. The dealership is liable for their salesmen's commitments to a customer. The salesman only works for the dealer. To support that, who did you buy it from? The dealership, not the salesman. The salesman is an authorized agent of the dealership allowed to represent the dealerships interests in sales transactions. As such, the dealership can be held to a statement by the salesman.

 

[mcmoody]

Written Proof?

I have the following excerpt in an e-mail from the sales rep from his work e-mail - he is responding to my questions as to why we have not heard back from him yet regarding the tow package. Would this suffice? He said it had tow package and was working up value when working off the KBB website on his work computer - we were both looking at screen - and he never printed that paperwork off.

Excerpt:
The reason you have not heard from me yet was because I was waiting to find a wholesell vehicle with tow package that would fit your colorado and see if I could talk our managers in to giving you those before they wholesell it or send it to auction. But I have not seen one that fits your colorado.

 

[justalayman]

While not specifying it was stated so matter of fact, that would be a good support of your claim of the statement.

Now, what do you do?

Well, often such an action would allow a rescission of the sale in it's entirety. You do have support of an actual negotiation to remedy the problem that you appear to find acceptable so, at this point, I would speak with the highest level of dealership control (owner or manager of the entire dealership)and allow him to choose: provide and install a tow package or rescind the sale.

Since requesting the rescission of a sale would be out of the realm of small claims court and due to 1. your acceptance of the remedy of them supplying you with the tow package materials 2. the cost of any action in anything other than small claims court could actually cost as much as the vehicle 3. and since you are such a nice guy and just want fair and honest treatment, I would sue in small claims court. I would sue for the cost of the package installed on the vehicle, not just the parts. If you want to negotiate, it sounds like you might be willing to accept just the parts. If so, I would leave that as a last level of negotiation. If they will not accept outside of court, sue for the cost of the package and having it installed. Prior negotiations are not evidence against you. They are simply efforts to avoid having to end up in court and are not binding.

 

[Zigner]

I am curious - what are you missing in the "tow package" that's not currently on the truck?