What's the liability?

From Virginia. The scenario: A consumer went to purchase an item that was not presently in stock at the store. The store puts in an order for the merchandise, which the consumer informs them he needs by 12 noon the next day. The consumer has to pay in advance, which he does, by check. The item does not arrive when needed as the store promised it would. The consumer informed the store that he could no longer use the item since it did not arrive on time. The store informed him they would have to charge a re-stocking fee. So the consumer put a stop payment on the check. The consumer never received the merchandise. Now the store is taking the consumer to court for the payment of the check, court costs, legal fees and interest. What are the consumer's rights in this matter?