Oral Agreement Violated-But We Lost Small Claims Case Anyway

[cmason]

What is the name of your state? California

Tomorrow my husband and I go to small claims court to appeal a judgement against us for $4000.
Here are the facts of our case:
Last April we entered into an agreement with a local advertiser to mail out coupon fliers for our home-based business. (turns out he has been twice convicted of fraud but, unfortunately, we did not know that at the time)

Our agreement was both verbal and written.

The verbal part was that this advertiser would distribute 180,000 coupons via u.s. mail over a three month period and that we would receive a response (telephone sales) of approximately 2%.
The written part of the contract ONLY stated the total number of coupons to be mailed and their mailing dates.
Unfortunately -we did not insist that this advertiser's verbal commitment of approximately 2% response be included in his standard contract form.

We had paid him $1600 initially - but we did not pay him the balance of the money because our response was pathetically low - we received approximately 20 calls in total.

He sued us for the balance owed (plus court costs) and the judge ruled in his favor - for $4000.

The judge stated that the verbal commitment was not valid - he stated that the written contract is the only thing that would be considered.

I always had heard that verbal promises (like the ones made by this advertiser) are just as valid.

Not only that - but after we refused to pay this man - he came several times to our home - pounding on the door - he sat out in front of our building (we live in a townhome) for two hours one day.

And - he left a threatening message on my husbands voicemail (which I taped on a recorder) saying that he would either "get his money or he would get a pound of flesh"

He was twice convicted of stealing people's credit cards from mailboxes and for all I know is still on probation.

There are also limitations on how many people he can sue in one year in small claims court. He has exceeded that limit - but the first judge didn't even want to hear about that. When I researched the records to see if he had sued other people I discovered that he has sued five other people this last year - which tells me that there are other people out there who have probably experienced the same rip-off.

I wish we had known this when we fell into his trap.

Does anybody have any suggestions for us? Are there any legal precedents for verbal contracts that I can show the judge we go before tomorrow?
Can I bring in this guy's criminal past, as I was thinking it would go to show that he is deceptive?

Sorry for the long post and Thank You in Advance for Your Responses!

 

[racer72]

When has an attorney been involved with the contract and the lawsuit? If your answer is there hasn't been one, you now know what you need to do.

 

[cmason]

Oral Agreement

Well - I'm not sure I get your meaning.

There was no attorney involved in the contract.

It's a small claims case - so we are not allowed to have attorneys in court.

And we cannot afford to pay an attorney to advise us - that is why I sought some advice on this forum.

Thank you

 

[JETX]

We had paid him $1600 initially - but we did not pay him the balance of the money because our response was pathetically low - we received approximately 20 calls in total.

And your failure to pay... written agreement or not, is called BREACH of contract.

He sued us for the balance owed (plus court costs) and the judge ruled in his favor - for $4000.

Based on your post, that sounds like a correct verdict.

The judge stated that the verbal commitment was not valid - he stated that the written contract is the only thing that would be considered.

And that is also correct. So, EXACTLY what evidence did you provide the court supporting your claim of a verbal agreement or amendment??

I always had heard that verbal promises (like the ones made by this advertiser) are just as valid.

That is correct.... as long as you can PROVE that the verbal contracted existed.

Does anybody have any suggestions for us?

The ONLY thing that could help you would be PROOF of the verbal agreement. Without it, you are very likely NOT going to prevail.

 

[cmason]

There may be hope after all - and thank God for the Internet!

Thank you, JETX, for your responses.

We have no proof, other than "our word against his" that he made the verbal assurances that he did.
Of course, he is a slimy type of guy (which we didn't find out, unfortunately, until too late) - so he was much too sly to put his verbal assurances that we would receive a response of 2% to the total 180,000 mailers down in writing.

We just returned from court and the judge said we did make the mistake of signing the contract.

The Good News is that the judge stated that he will consider the fact that the slimy plaintiff is a twice (yes, twice) convicted felon. That he has been convicted - as recently as four years ago- of mail & credit card fraud.

After we were sued by this man - I did an internet search on his name and his company's name to see if there were other people who had been similarly ripped off. Up popped a detailed court decision (from the Supreme Court) which described how this man stole credit cards from people's mailboxes and then went shopping at Nordstrom. Very interesting reading!

The judge said he would make his ruling after reading the documents I obtained - because he said that it goes towards the plaintiff's credibility.

So - we'll see.

I'll let you know what the judge rules as soon as I find out.

Thanks again!

 

[You Are Guilty]

There are also limitations on how many people he can sue in one year in small claims court.

Do you know the statute that says this? I have never heard of such a limitation (for any court) like this before.

 

[JETX]

Do you know the statute that says this? I have never heard of such a limitation (for any court) like this before.

Yep, this is true for small claims in California. A claimant can’t file more than two small claims court actions for more than $2,500 anywhere in this state during any calendar year.

California Code of Civil Procedure:
116.231. (a) Except as provided in subdivision (d), no person may file more than two small claims actions in which the amount demanded exceeds two thousand five hundred dollars ($2,500), anywhere in the state in any calendar year.
Source: http://www.leginfo.ca.gov/cgi-bin/displaycode?section=ccp&group=00001-01000&file=116.210-116.270

 

[You Are Guilty]

Wow. Not to get off track, but how the hell is that legal? Is there some provision that lets you move up a court even if the dollar amount is still within the small claims limit if you're over the 2-per-year limit? How to people pursue their collections cases like that?

 

[cmason]

Limit on Number of Small Claims Cases $2500 & Higher

I read the paperwork and there are exceptions to this rule - but the paperwork does not state what those exceptions might be.

 

[JETX]

Wow. Not to get off track, but how the hell is that legal? Is there some provision that lets you move up a court even if the dollar amount is still within the small claims limit if you're over the 2-per-year limit? How to people pursue their collections cases like that?

Presumably, the limit was set to protect the small claims courts to be an informal court used by the people.... and to prevent abuses by 'mass litigants'.