Third Party Seller sends incorrect item

[quincy]

As the party which invoiced me and received payment, wouldn't Newegg ultimately (from a legal standpoint) be responsible for setting things straight? I guess I'm confused on this point. I'm not sure where to direct my attention as I move forward.

Again, this was not your error so you owe nothing until the correct item is shipped and received. You are not responsible for costs (return shipment costs, stocking fees) for an error originating elsewhere. The way you would be responsible is if you ordered by item number and you gave the wrong number.

That said, the one who is responsible is the one who made the error. If the order was filled out correctly but the seller or shipper sent the wrong item, the seller or shipper is at fault. If the order was filled out incorrectly (perhaps the wrong item number listed), the responsibility falls on the one who ordered the item for you.

I suggest you find the source of the error.

 

[Zigner]

As the party which invoiced me and received payment, wouldn't Newegg ultimately (from a legal standpoint) be responsible for setting things straight? I guess I'm confused on this point. I'm not sure where to direct my attention as I move forward.

The terms of service for Newegg say differently.

 

[Ben75]

That said, the one who is responsible is the one who made the error. If the order was filled out correctly but the seller or shipper sent the wrong item, the seller or shipper is at fault. If the order was filled out incorrectly (perhaps the wrong item number listed), the responsibility falls on the one who ordered the item for you.

I suggest you find the source of the error.

Thanks for the response.

Well, given the fact they sent a packing list for a processor with the network card, the error is obviously on the part of the seller. But at this point it's clear the seller is not going to answer any questions, and Newegg responded to me last night saying they will not refund my money until the seller processes the return. So, Newegg is claiming responsibility to refund my money.

And while I don't wish to wind up in small claims court over this, I do need to think about exactly who is responsible for the contractual breach. Should I assume it is the seller, I can see a judge asking me why I'm naming them as defendant when the invoice has another company's name on it, and that's the company I paid. If I send legal notice then I want to make sure I am sending it to the appropriate party.

 

[Zigner]

The phrase "throwing good money after bad" comes to mind. I have the utmost respect for Quincy (and the other responders here, of course), but I don't think your case is as cut and dry as you seem to to think it is. Furthermore, even if you do convince the court to order the return of any money, I think that you would recover enough money to cover the expenses of pursuing an out-of-state small claims case.

 

[quincy]

Thanks for the response.

Well, given the fact they sent a packing list for a processor with the network card, the error is obviously on the part of the seller. But at this point it's clear the seller is not going to answer any questions, and Newegg responded to me last night saying they will not refund my money until the seller processes the return. So, Newegg is claiming responsibility to refund my money.

And while I don't wish to wind up in small claims court over this, I do need to think about exactly who is responsible for the contractual breach. Should I assume it is the seller, I can see a judge asking me why I'm naming them as defendant when the invoice has another company's name on it, and that's the company I paid. If I send legal notice then I want to make sure I am sending it to the appropriate party.

You could potentially name them all in a civil action but it appears from what you have said that the seller packaged up the wrong item for shipping.

 

[Junction]

I haven't seen anywhere where the OP asked the seller to exchange the incorrect item for the correct one. It seems the problem is he's asking for a refund and the company has a 30% restocking fee policy.

 

[quincy]

I haven't seen anywhere where the OP asked the seller to exchange the incorrect item for the correct one. It seems the problem is he's asking for a refund and the company has a 30% restocking fee policy.

Either a refund should be given or the correct item sent. Someone who is sent a wrong item, though, should not be charged for the return shipping of the item nor should that person be charged a restocking fee for an error not of their making.

Those costs are borne by the one who erred in sending the wrong item.

The objection has been that Ben75 is required to pay both if he wants the item he ordered sent to him.

 

[Ben75]

We're kind of deviating off the initial questions (who is the defendant, here?) but I'll fill in some more background for those who are interested.

My first communication with them was to indeed ask for the correct item or a refund. However, I suspect they never had it to begin with. A separate story but irrelevant nonetheless (since I can't prove anything), but it did cause me to consider the ramifications of the packing list. Because it had the correct item on it, I wanted to be certain to get some kind of (real) response from the seller. Additionally, the network card box has the SKU# of the processor scribbled on it in someone's handwriting. I work in shipping myself, and this raised some red flags. Almost looked like someone in their warehouse could have stolen the processor and substituted something else. Warehouse workers have been known to pull things like this. While we easily caught a guy doing this at a place I used to work, not all warehouses are created equally. (One of my emails explained all of these concerns, btw)

I know when there is a mistake that many times it can be confirmed on your own end. UPS accounts have histories with box dimensions and weights in addition to any inventory records the warehouse might have. So my questions were an attempt to fact-find and protect myself from simply shipping the item back and having them say "well, looks like this didn't come from our warehouse." For a $20 item, I'd probably just ship it back. Since I paid around $480, I wanted to make sure I wasn't leaving myself open to being scammed.

For these reasons it was important to communicate with the seller to share information. They wanted NO such thing. I couldn't get anyone on the phone (except people who forwarded my call to voicemail boxes - no call backs), couldn't get them to respond to any of my questions (like what happened?), couldn't get them to clarify their restocking fee. I got almost nothing but automated responses (all of which had generic, almost fake-looking names like John Smith, Bob Miller, etc..). I did get one email which looked "real" but when I responded with a couple of questions I got the exact same email back in reply. I have been polite and forthcoming with them.

These are legit questions, and I think a pattern of bad faith has been established. Even if they simply were to say, "sorry, but we checked our records and accounts but we can't confirm we shipped incorrectly" then that would at least be something. They don't have to admit fault or declare innocence - just convince me that you're working to resolve the problem and gather all the pertinent facts. But, no way. Instead they want: return the item, pay a restocking fee (presumably), pay for shipping, and then pray.

Hell, no.

 

[quincy]

We're kind of deviating off the initial questions (who is the defendant, here?) but I'll fill in some more background for those who are interested.

My first communication with them was to indeed ask for the correct item or a refund. However, I suspect they never had it to begin with. A separate story but irrelevant nonetheless (since I can't prove anything), but it did cause me to consider the ramifications of the packing list. Because it had the correct item on it, I wanted to be certain to get some kind of (real) response from the seller. Additionally, the network card box has the SKU# of the processor scribbled on it in someone's handwriting. I work in shipping myself, and this raised some red flags. Almost looked like someone in their warehouse could have stolen the processor and substituted something else. Warehouse workers have been known to pull things like this. While we easily caught a guy doing this at a place I used to work, not all warehouses are created equally. (One of my emails explained all of these concerns, btw)

I know when there is a mistake that many times it can be confirmed on your own end. UPS accounts have histories with box dimensions and weights in addition to any inventory records the warehouse might have. So my questions were an attempt to fact-find and protect myself from simply shipping the item back and having them say "well, looks like this didn't come from our warehouse." For a $20 item, I'd probably just ship it back. Since I paid around $480, I wanted to make sure I wasn't leaving myself open to being scammed.

For these reasons it was important to communicate with the seller to share information. They wanted NO such thing. I couldn't get anyone on the phone (except people who forwarded my call to voicemail boxes - no call backs), couldn't get them to respond to any of my questions (like what happened?), couldn't get them to clarify their restocking fee. I got almost nothing but automated responses (all of which had generic, almost fake-looking names like John Smith, Bob Miller, etc..). I did get one email which looked "real" but when I responded with a couple of questions I got the exact same email back in reply. I have been polite and forthcoming with them.

These are legit questions, and I think a pattern of bad faith has been established. Even if they simply were to say, "sorry, but we checked our records and accounts but we can't confirm we shipped incorrectly" then that would at least be something. They don't have to admit fault or declare innocence - just convince me that you're working to resolve the problem and gather all the pertinent facts. But, no way. Instead they want: return the item, pay a restocking fee (presumably), pay for shipping, and then pray.

Hell, no.

Then file suit or do as Zigner suggested earlier.

 

[Ben75]

Then file suit or do as Zigner suggested earlier.

Yes. This is why I initially inquired as to who the actual, legal defendant would be - because I am prepared to send notice(s).

 

[Zigner]

Yes. This is why I initially inquired as to who the actual, legal defendant would be - because I am prepared to send notice(s).

I don't think you would have any cause of action against Newegg, but even if you did, you would have to take legal action against Newegg in CA, and there are other hoops to jump through. Read the terms you agreed to by using their marketplace.

You would have to file suit against the seller in his/her home state. Travel expenses and your time to do so are not recoverable, and may exceed any award you could received, not to mention your time and money to collect (the court doesn't do that for you.)