Dealer sold me wrong machine - what now?

[Andy]

First of all I would appreciate any help or advice that I get here.

2 weeks ago I ordered a NEW TIG Welder from a local dealer. This is a top of the line model costing thousands. I told the dealer the model I wanted and gave him some money down on it so he would go ahead and order it. He gave me a brochure on it and I had noticed that eve the were 2 different models. Same model number, one has an option that the other one does not - about a $300 price difference. I called the dealer the very next day to let him know that I wanted the "full feature model." I took it that he understanded and left it at that. It came in just later last week. I sent my father to pick it up with a blank check of mine. That eve after getting this 700lb + machine unloaded I unboxed it to find out it was the LESSER of the model. I called the dealer the very next day. He tells me that he will see what he can do about getting me the correct maching, but argued that he ordered the one we discussed. He made it seem like I would be stuck with this one. I only have the model # on paper. This is a dealer that has been in business for better than 10 years. I am hoping to find out what my options are. Does he have to give me what I thought I ordered? Should I contact the better business bureau? Must they give me a refund if I want it? And yes I know that this all could of been avoided if I would of just stopped by and check it out before I took delivery. Thanks, A

 

[Tracey]

Your contract with the seller is governed by the Uniform Commercial Code, Article 2 (Sales of Goods). Your options include:

rescind the contract for mutual mistake (2 different machines have same model #; you wanted A & dealer thought you wanted B). You get all your money back; S gets the welder (& pays to have it returned to the manufacturer).

reject the goods for non-compliance with the contract, which non-compliance could not have been discovered until you got the machine home & out of the box, since both machines ought to have identical boxes. The contract still exists, but S has to provide a welder that complies with the contract terms at his expense. (That pesky shipping/restocking fee again. )

Accept the welder, buy the option package separately if you can do so, & sue seller for breach of warranty -- the brochure showed 2 versions of model #xxxx, & you informed dealer in a timely fashion (12 hours) that there were 2 machines with the same model number & you wanted the "full-featured" model, & in the context of the brochure, this statement was specific enough that any moron would have realized you meant the one with the extra options. Since seller knew or should have known that you wanted #xxxxB, seller breached the contract by ordering #xxxxA. Seller is liable to you for your costs in fixing the breach. This includes shipping & restocking fees if you return #xxxxA & get #xxxxB sent out, or the EXTRA costs of getting the option package sent out (extra shipping costs), but not the $300 you expected to pay for the option package.

Visit seller in person tomorrow & explain that these are your options & you will stop payment on the check at 10 a.m. if you & S can't reach an agreement regarding the welder. Whichever option S & you choose, get the new agreement in writing & signed by both of you. If you think the check might hit the bank before you're done, put a hold on it first, then go see seller.

Good luck.

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This is not legal advice and you are not my client. Double check everything with your own attorney and your state's laws.

 

[A]

Thanks for the advice. I spoke with dealer this afternoon. He plans to sell me this upgrade at cost and stop by to install it - since it can be. He knows I was pissed and I am sure he thought about what options he had too. Thanks for the help. Always a learning experience. First time I have ever had a problem like this. Thanks again, Andy