Small Claims Court?

[momtohaley2004]

The question that exists is.......was this a contract? Here is what I found on a legal information website.

A contract is an agreement between two or more parties to do, not do, or promise something. Contracts can come in many forms — they can be oral or written, implied or express, and legally enforceable or not. The strongest contract, in terms of enforceability, has an offer, acceptance, consideration for the exchange, clearly sets out the terms of the agreement without ambiguity, and is signed by the involved parties with proper capacity to enter into the contract. Weaker contracts include verbal agreements or contracts drawn up by parties in direct violation of state or federal laws. There are numerous aspects related to valid contracts; in fact, an entire course in law school is often devoted to contract law.

Sometimes, however, a contract term or the entire contract itself is implied. For example, when you order food at a restaurant you are entering into a implied, oral contract. You and the server do not explicitly state the offer and acceptance for the steak you ordered with a list price of 32 US Dollars (USD) but that agreement is implied. The basic elements of a contract, namely an offer, acceptance of the offer, and consideration for the exchange, are all implied.

Contracts may be enforceable by law or they may not. Whether a contract is enforceable by law depends on numerous factors, the primary factor being whether the parties to contract intended the contract to be legally binding or legally enforceable.

THUS, it seems to me, that you implied that you agreed to the terms when you paid the money. IF you didn't receive your packet by the 5th, then on the 6th you should have called...at the latest by the 10th and said where is my packet....NOT 6 days before the show. You accepted the terms whenyou sent in your money and thus you intended the cotnract to be legally binding or enforceable. Therefore, you accepted their offer to provide you a place and who is to say that your packet didn't get lost in the mail? I'm sorry to have to tell you this, but just PAY them and get it over with. They have a better chance in court on this than you do especially when you sent the check in anticipating to go then canceled. They could say that you didn't pay and tried to show up. They could say a number of things or try to go for theft of services. If I were you, I'd just pay it and cut your losses. Quit playing a game with them, learn from this and move on and if you have such doubt about who is in the right then contact a lawyer. BUT I guarantee you a lawyer will cost more than it would if you just paid them in the first place.

[kinipela]

THUS, it seems to me, that you implied that you agreed to the terms when you paid the money. IF you didn't receive your packet by the 5th, then on the 6th you should have called...at the latest by the 10th and said where is my packet....NOT 6 days before the show. You accepted the terms whenyou sent in your money and thus you intended the cotnract to be legally binding or enforceable. .

Then they should have proof they sent me the packet, therefore upholding their end of the "contract". The email I received said she didn't recall. Coulda, shoulda, woulda on the calling. I had other things going on at the time and didn't think about it.

Therefore, you accepted their offer to provide you a place and who is to say that your packet didn't get lost in the mail?

I sent in an application. An application is not a guarantee of acceptance.

Quit playing a game with them, learn from this and move on

I'm not playing a game... I'm not paying them the $35. I don't feel I owe it to them when they did not uphold their end of the agreement. They never contacted me saying either way if I was accepted or not. This is very serious to me, and I don't appreciate being threatened via email or phone.

[momtohaley2004]

Well, if you have documentation then do what you got to do. They didn't send the check back to you stating you weren't accepted did they? How many packets did she have to send out? Could it have been hard to recall just one? Good luck in whatever you choose to do and keep us posted.

[HeavenScentU]

One thing to consider, if you have a judgement against you it does go on your credit history and they could even send you to a collections agency. Both are bad news. I would just pay it in full, since you already paid them $10.00. That would mean you are accepting guilt. It still falls down to being responsible if you knew you were going to receive a packet by a certain time you should have called to see if they sent it because you hadn't received it. I always do a followup on all my craft shows to make sure the show event person received everything they need from me. I always make sure I am in especially the larger shows.

[Late Night]

I'd pay the $35.00. If she takes you to court and wins, you could be out the $35.00 fee, $10.00 for the check, court costs and anything else she could possibly come up with.

I don't do shows and I'm not very familiar as to how they are run but, if it is a network, you could get a bad reputation as being one who doesn't pay their bills. You may be rejected from a lot of shows.

Just something to think about.

[sockmonkey]

Is this deja vu, or didn't we have another thread nearly identical to this a while back, only someone wanted to get out one show in order to do another one? Maybe I'm mistaken.

One thing that a court will look at is the reasonable expectation the promoter had in expecting that the mail would be delivered by the post office. The information packet really wasn't that time sensitive, nor did it contain anything of a monetary nature that would warrant a signature. It is unreasonable to expect a business to send every document certified or registered as proof that a document was mailed in the ordinary course of conducting business.

Have you never mailed anything that didn't make it to it's destination? It happens. Have you never mailed a check only to get a phone call asking where your payment is when you KNOW you sent it? The post office mis-delivers and damages mail all of the time.

The promoter could not possibly have known you hadn't received your packet unless you contacted them. Of course, as you say, perhaps they never mailed it, but you know they will never admit to that in court. If you had contacted them earlier they would have been able to mail another packet to you and this whole mess could have been avoided. It could be a matter as simple as someone typing a wrong digit in your address that prevented you from getting it.

How would you feel if, as an example, in August someone gave you a $50 check as a non-refundable deposit on candles for a fundraiser and you were going to mail an information packet to this person containing all the pricing information and order sheets needed to carry out the fundraiser. You told them they would have the packet by Nov. 5th. You mail the packet and in the mean time you're busy buying supplies and pouring candles in preparation. You were due to have all inventory ready by Dec. 1st. Then on Nov. 25th the person calls you and cancels their order because they didn't receive their packet. You were courteous enough not to cash their check prior to that date, but then you decide you will go ahead and cash it afterwards to at least try to cover the cost of your supplies, only to find out they put a stop payment on it.

How would you react as a business person under those circumstances?

The thorn in everybody's side in this issue is actually the delivery (or lack of) of the packet, which will end up being attributed to the post office.

I can't believe the person is really willing to go to small claims court, but if they've got enough money and time on their hands anything is possible. I just hope the matter can be resolved fairly for all parties concerned.

[hometowncandles]

There's still hope that you may receive your packet eventually, although you might not be around to see it.

This article was on our news the other night so I just had to look it up and post it, talk about misdirected mail.

http://www.foxnews.com/story/0,2933,316896,00.html

[mizbizzyb]

Send her $35 in monopoly money and stick a candy cane on the letter with some cute Christmas stickers. lmao

Honestly.....this is just me.....I would pay the $35 because it is a small amount and not worth my time and sign it Karma.

If it were a couple hundred dollars I would fight it. But then I would have called a around the 12th to see if they mailed out the info if I had not received it.

[artcwolf]

We did a fair for my wife's store last year and we got into something very close. We sent in out application with our money and the check was cashed. We spent the next two months waiting on the "packet" only we didn't see anything. As the months ticked down we DID call not once but serveral times only to talk to the person in charges reletives, or she was on vacation and would call us back. The # we were given was her personal cell phone. We finally took to calling the city for information, and finally got in touch with her boss to get what we were looking for. This was 2 weeks before the fair, the deadline to register was almost 2 months ago.

2 days later, we got the information hand delivered by the person we've been trying to get us to let us know what was going on.

I'm with most everyone else, pay the fee....the packet was never mailed, lost in the mail, or what have you, but regardless of having other stuff going on, it is your responsability to follow up, a bit before the deadline of you getting the packet, and definitly after the deadline, but NOT 20 days later.

Canceling the check was also not a bright idea. I honestly see the people taking you to court and winning, and you being out more then $45.00....

just my .02 cents thought.

[Di_in_AZ]

Since when has the responsibility of someone doing something they are supposed to do, fallen on the other party--that it is THEIR fault for not reminding said party to do it? We have all fallen into a new realm of not taking responsibility. The responsibility of delivering that packet was the sole baby of the organizers, it is not the fault of the person who didn't receive it for not reminding them. Dear god help us all--no one takes responsibility for anything anymore. *sigh*

[debscent]

Since when has the responsibility of someone doing something they are supposed to do, fallen on the other party--that it is THEIR fault for not reminding said party to do it? We have all fallen into a new realm of not taking responsibility. The responsibility of delivering that packet was the sole baby of the organizers, it is not the fault of the person who didn't receive it for not reminding them. Dear god help us all--no one takes responsibility for anything anymore. *sigh*

If that is the case, then cancelling the check after acknowledging a non-refundable provision is not accepting responsibility. Cancelling the check recognizing it's a non-refundable fee is not very responsible now is it???

Kinepela, the above statement not directed at you personally, it's just my point of view on this situation.

[Di_in_AZ]

It is when they did not perform their part. She gave them payment based upon their terms, which was they would let her know if she was accepted by Nov. 5th--they did not. Plain and simple--that is a breach of contract.

ETA: You cannot take payment and not provide a service, even if you print non-refundable 50 times on the app. If that were the case, I am doing a fair next week--non-refundable payments please (wink, wink)--see where I am going with this? If you go research consumer law, you will see there are certain things you cannot say, they are against the law and will not hold up. That is one of them. The sheer fact that if they do not come through on their end, they cannot take the money. Every contract has consideration on the part of both parties. They did not keep to their end, did they? Every show I have been in, I have been contacted in a reasonable amount of time to let me know whether I have been accepted. They did not. It would have been nice had she contacted them, but she was NOT legally obligated to. That was not her fault.

[momtohaley2004]

You stated "I put at stop payment on the check as lost, contacted show manager 1, and told her I was not able to do the show. She emails back and says the fee is non-refundable."

So, my question is........if the check was "lost" then why did they try to cash it? Evidently it wasn't "lost" afterall and you stopped it under false pretenses. Why

[Late Night]

Since when has the responsibility of someone doing something they are supposed to do, fallen on the other party--that it is THEIR fault for not reminding said party to do it? We have all fallen into a new realm of not taking responsibility. The responsibility of delivering that packet was the sole baby of the organizers, it is not the fault of the person who didn't receive it for not reminding them. Dear god help us all--no one takes responsibility for anything anymore. *sigh*

Maybe they did mail it and it got lost in the mail? Maybe they weren't aware she hadn't received it. She knew she didn't get the packet but maybe they didn't know. If she had inquired about it it probably wouldn't have gotten this far out of hand. If I buy something and it doesn't arrive, you can bet I'm on the phone asking about it even though it isn't my responsibility that it didn't arrive.

[momtohaley2004]

You stated "I put at stop payment on the check as lost, contacted show manager 1, and told her I was not able to do the show. She emails back and says the fee is non-refundable."

So, my question is........if the check was really "lost" then why did they try to cash it? Evidently both parties knew the check existed and tried to beat the other to the punch.

Best of luck. Hope it all works out for ya.

[momtohaley2004]

If I buy something and it doesn't arrive, you can bet I'm on the phone asking about it even though it isn't my responsibility that it didn't arrive.

I hear ya on this one.....my furniture issue wasn't my responsibility for not showing up, but you bet ya, I placed the order and paid for it and I was calling every day asking questions. Until finally I got fed up after 12 weeks went by and so I contacted an attorney. If you expect something and don't get it aren't you at least curious why?

[Di_in_AZ]

Maybe they did mail it and it got lost in the mail? Maybe they weren't aware she hadn't received it. She knew she didn't get the packet but maybe they didn't know. If she had inquired about it it probably wouldn't have gotten this far out of hand. If I buy something and it doesn't arrive, you can bet I'm on the phone asking about it even though it isn't my responsibility that it didn't arrive.

The show manager 1 said that show manager 2 didn't recall sending it, it is in the original post.

I didn't say whether it was appropriate/inappropriate for her to have contacted them--I said it not her responsibility if they didn't mail it--that was a failure on their fault--their responsibility. I am discussing what she told us the situation was (that they acknowledged they didn't recall sending it) not the what ifs or what could have beens.

[momtohaley2004]

Whatever happens with this I just hope that you don't do this show with them again.

[Candybee]

My question is can they really enforce a non-refundable show fee? Just because you put something into a entry form doesn't necessarily make it legal. I'm not sure they can legally claim a fee is non refundable. I would at least check with an attorney on that.

[sockmonkey]

It's perfectly legal to have non refundable fees associated with applications. The reason being is that it takes manpower for someone to open mail and process the application.

A lot of organizations assess such a fee--universities, apartments, and banks to name a few.

However, once an individual's application is accepted, then usually more money is required afterward, provided they meet whatever requirements have been established.

In the situation at hand, it isn't clear to me if the $35 fee was truly an application fee, or if it was the entire fee needed to participate in the craft fair.

[kinipela]

However, once an individual's application is accepted, then usually more money is required afterward, provided they meet whatever requirements have been established.

In the situation at hand, it isn't clear to me if the $35 fee was truly an application fee, or if it was the entire fee needed to participate in the craft fair.

Go back and read this post

http://www.craftserver.com/forums/showpost.php?p=596484&postcount=17

That has the application with only the name/phone/address removed.

[kinipela]

You stated "I put at stop payment on the check as lost, contacted show manager 1, and told her I was not able to do the show. She emails back and says the fee is non-refundable."

So, my question is........if the check was really "lost" then why did they try to cash it? Evidently both parties knew the check existed and tried to beat the other to the punch.

I assumed the check was lost since I had not heard from them. I had left a message for show manager 1, and she never got back to me. During our one phone call, she told me her mother had gotten really sick and died during this time frame. She didn't recall getting that message either, but I'll give her the benefit of the doubt on that. Why wouldn't I assume it lost? It had not been cashed, I had not heard anything. How was I to know it wasn't a scam? And they tried to cash the check 2 weeks after the show.

[kinipela]

I hear ya on this one.....my furniture issue wasn't my responsibility for not showing up, but you bet ya, I placed the order and paid for it and I was calling every day asking questions. Until finally I got fed up after 12 weeks went by and so I contacted an attorney. If you expect something and don't get it aren't you at least curious why?

Yeah, I probably should have called, and kept calling until I actually got ahold of someone, instead of just leaving one message, but I got busy, etc. Life happens.

[kinipela]

I find that odd because EVERY application I have done has a spot for you to sign. I'm not sure how to take this w/o a signature.

I've only seen 5 apps for my area, and NONE of them had a place for a signature.

That's a grey area.........but in reality...come on, why fight it just send them their money, get them off your back and move on. Is it really worth all this stress and anxiety for you? Do you really need the 35 dollars that badly?

Right now, yes. My horses have to be fed, and that's 2 bags of feed. Situations have changed since August.

There is never a guarantee you'll make your entry fee back especially when the weather is bad. That's just my opinion.

And if I had gotten the packet, I would have gone, or been out the money, no questions asked. It comes down to the fact that that I never received it. And they can't recall sending it.

It's perfectly legal to have non refundable fees associated with applications. The reason being is that it takes manpower for someone to open mail and process the application.

It doesn't cost someone $35 to open an envelope and read an app. If 3 people with the same products applied, and they only accepted one, the other two are completely out of their money? And if they hadn't notified them either that they weren't accepted, are they supposed to keep that weekend day open, just in case? If that's how most craft fairs are, forget it, I'm not doing anymore. I don't have money to just throw around for a maybe show and miss out on others. Or better yet, I'll just run a show and keep the money for people who aren't accepted. Doesn't make sense to me. Maybe I'm seeing it wrong, don't know. I've done one show, certainly not an expert.

[SherriLynn]

I think I'm missing something here.... You stopped payment first, THEN called the show manager...?? Did you ever attempt to call either show manager first, to make sure they had indeed received the check,, before placing stop payment.?

The show promotors could have very well received your check, mailed you a packet, that you did not receive.... Just because someone doesnt' remember sending a packet, doesn't mean they didn't. as most of these promotors work with hundreds of vendors for a show.

It would seem to me that before any actions on your part were taken about cancelling a show, stopping payment on a check, the first contact should have been made to the promotor.

We vend at approximately 35 shows a year. Many promotors hold checks and cash them the week of shows, to help the crafter/artisan with cash flow... however, that doesnt' mean they haven't been received. Packets at times are large, and get torn open or damaged in mailing. I've had packets misplaced, not received, but I sure wouldn't do anything without contacting a promotor first.

I would think in a small claims situation, the judge will ask, why didn't you call them, before taking any action. Just my humble opinion...