Do I have recourse

[marcusman]

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

Every year I run promotional events whereby vendors register to participate and they are given a table to display their items.

A new vendor contacted my organization, registered for two events and sent her check in. She then emails the night before to say that she cannot attend due to not feeling well as a result of her pregnancy and that she would appreciate a refund. I responded back that we cannot provide a refund, however I would give her a credit towards participating in a different event. Instead of receiving a response, I received a Stop Payment notice from the bank on her check.

There was no contract involved in this arrangement, although I have the emails indicating that she was committed to the events.

Would I win this if I brought it to Small Claims?

~M

 

[tranquility]

There was no contract involved in this arrangement, although I have the emails indicating that she was committed to the events.

Would I win this if I brought it to Small Claims?

If by "no contract" you mean no contract, then no. If by no contract you mean no written agreement, then maybe.

What was your agreement?

 

[Antigone*]

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

Every year I run promotional events whereby vendors register to participate and they are given a table to display their items.

A new vendor contacted my organization, registered for two events and sent her check in. She then emails the night before to say that she cannot attend due to not feeling well as a result of her pregnancy and that she would appreciate a refund. I responded back that we cannot provide a refund, however I would give her a credit towards participating in a different event. Instead of receiving a response, I received a Stop Payment notice from the bank on her check.

There was no contract involved in this arrangement, although I have the emails indicating that she was committed to the events.

Would I win this if I brought it to Small Claims?

~M

What are your financial damages as a result of her stopping payment on the check.

 

[tranquility]

What are your financial damages as a result of her stopping payment on the check.

The damages in a breach of contract suit would be the benefit of the bargain or, the amount of the check. (An interesting question would be if there was a full docket and he could replace the person with another.)

The damages in a tort suit (negligent misrepresentation) would be the amount to bring the person back to status quo ante. Since he did not do any action based on the representation (Didn't buy a table, didn't get a larger auditorium) the damages would be zero. (Admittedly, probably zero. He may have printed out a place card or something.)

 

[Zigner]

The damages in a breach of contract suit would be the benefit of the bargain, or the amount of the check.

The damages in a tort suit (negligent misrepresentation) would be the amount to bring the person back to status quo ante. Since he did not do any action based on the representation (Didn't buy a table, didn't get a larger auditorium) the damages would be zero. (Admittedly, probably zero. He may have printed out a place card or something.)

Perhaps the OP turned away other vendors for that table...? If that were the case, then the OP is actually out the full amount of the "deal", not just the deposit amount.

 

[tranquility]

Perhaps the OP turned away other vendors for that table...? If that were the case, then the OP is actually out the full amount of the "deal", not just the deposit amount.

I originally wrote, "fair enough" in regards to damages (while actual liability is more difficult), but on reflection, I'm not sure. As to the tort, I'm uncertain of the realistic possibility of saying a person is negligent in a representation in this situation (Or if there could be justifiable reliance, it may be only an opinion. Prediction as to events to occur in the future are something one does not have a right to rely upon.). I was only issue spotting.

2. Negligent misrepresentation. In order to recover for negligent misrepresentation a plaintiff must prove that the defendant (1) in the course of his business, (2) supplies false information for the guidance of others (3) in their business transactions, (4) causing and resulting in pecuniary loss to those others (5) by their justifiable reliance upon the information, and (6) with failure to exercise reasonable care or competence in obtaining or communicating the information. Fox v. F & J Gattozzi Corp., 41 Mass. App. Ct. 581

As to the damages, Prosser and Keaton on Torts mention the modern action of "deceit"'s "purpose is not to compensate the plaintiff's loss, but to restore what the defendant has received". Here, nothing. There need be a "transfer of something of value".

There are two methods to decide in American courts. "One of these, the so-called "out of pocket" rule, looks to the loss which the plaintiff has suffered in the transaction, and gives him the difference between the value of what he has parted with and the value of what he has received." The other is more along the "loss-of bargain" rule. But, both measures are for INTENTIONAL deceit. (aka fraud)

In MA for negligent misrepresentation:

Danca v. Taunton Sav. Bank, 385 Mass. 1 , 10 (1982). See Restatement (Second) of Torts s. 552B (1977), which provides as follows:

"(1) The damages recoverable for a negligent misrepresentation are those necessary to compensate the plaintiff for the pecuniary loss to him of which the misrepresentation is a legal cause, including

(a) the difference between the value of what he has received in the transaction and its purchase price or other value given for it; and

(b) pecuniary loss suffered otherwise as a consequence of the plaintiff's reliance upon the misrepresentation.

"(2) the damages recoverable for a negligent misrepresentation do not include the benefit of the plaintiffs contract with the defendant."

 

[marcusman]

First, let me say "thanks" to so many people for weighing in on this!

To answer a few points:

1. There was no written contract regarding the agreement, however the email exchanges make it clear that the vendor is paying an amount ($150 + $175 = $325) to have a table at each event.

2. My damages are the full $325 after having turned away another vendor for those same tables.

I even offered for this person to have a table at another event or to even carry over the amount to the following year, but my answer was the stop-payment notice from my bank.

Knowing all of this, do you think I would win a decision in Small Claims?

I have been to Small Claims once before and the process appeared extremely informal and based more on evidence-in-hand combined with common sense versus legal precendence. Nonetheless, showing up with some sort of precedent that was reflective of my situation would be nice. If I read it correctly in a previous thread, I would not be able to avail myself of Negligent Misrepresentation since the vendor did not register with the intention of pulling out. Is that correct?

 

[swalsh411]

What she did was illegal. I would tell her you will report her crime to the police if she does not pay you the $325.

 

[tranquility]

What she did was illegal. I would tell her you will report her crime to the police if she does not pay you the $325.

Huh? I disagree. There seems no crime here.

But, what was the agreement?

 

[Mass_Shyster]

Huh? I disagree. There seems no crime here.

This is Massachusetts, almost everything is a crime.

Specifically:

CHAPTER 266 CRIMES AGAINST PROPERTY

Section 37 Fraudulent checks, etc.; drawing or uttering


Section 37. Whoever, with intent to defraud, makes, draws, utters or delivers any check, draft or order for the payment of money upon any bank or other depositary, with knowledge that the maker or drawer has not sufficient funds or credit at such bank or other depositary for the payment of such instrument, although no express representation is made in reference thereto, shall be guilty of attempted larceny, and if money or property or services are obtained thereby shall be guilty of larceny. As against the maker or drawer thereof, the making, drawing, uttering or delivery of such a check, draft or order, payment of which is refused by the drawee, shall be prima facie evidence of intent to defraud and of knowledge of insufficient funds in, or credit with, such bank or other depositary, unless the maker or drawer shall have paid the holder thereof the amount due thereon, together with all costs and protest fees, within two days after receiving notice that such check, draft or order has not been paid by the drawee. The word “credit”, as used herein, shall be construed to mean an arrangement or understanding with the bank or depositary for the payment of such check, draft or order.

See bolded portion. If the drawee (bank) refuses the check, it is prima facie evidence of larceny by check.

OP should report this to the police, and ask the prosecutor for a restitution order.

 

[marcusman]

"Agreement" may not be the right word here. The bottom line is that she contacted us to have a table at our events, she was informed of the cost it would be for those tables, she mailed in a check and then when she was not able to attend and was informed that there was not a refund, she put through a Stop-Payment on her check.

So Stevef...you're convinced the next move for me is to file a police report and then file a Small Claim action asking for a restitution order?

~M

 

[tranquility]

What "property or services" were obtained? There is no crime here. Even in MA.

If there was no agreement, you have no case.

 

[Mass_Shyster]

So Stevef...you're convinced the next move for me is to file a police report and then file a Small Claim action asking for a restitution order?

File a complaint with the police. If they tell you it's a civil matter, you will have to resort to small claims court. If they file criminal charges against her, the DA will probably ask for a restitution order, but in any event, the DA will certainly contact you.

The lesson to be learned is Don't hold onto checks. Deposit them immediately.

Answer to Tranq: She rented space from OP for an event and paid with a bad check.

 

[marcusman]

In the event that I go to Small Claims, should I refer to your citation of the "CRIMES AGAINST PROPERTY" law?

 

[tranquility]

Answer to Tranq: She rented space from OP for an event and paid with a bad check.

There was a purported not agreement where space would be allocated to the other party in return for money. The other party was not going to use the space and told the OP before the event. She stopped payment. There was no product or service obtained.

This is a civil matter where the OP does not claim a contract.

He has no recourse.