Q: Verbal business agreement to buy wood. Wood was not fully delivered and payment was made. The seller refused to deliver.
3 cords of wood were bought and the seller only delivered 1 1/2. Stated that the rest would be delivered the next day. It has been 2 months and wood or money has not been returned.
A: Although you don't have a writing, it appears that you have evidence that a contract was entered. It will now be an issue of forcing delivery. Please contact an attorney if you need assistance.
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If you go to court to enforce your purchase and the seller's subsequent breach of performance, the first thing to ask yourself is:
1. What there an offer? Did you offer to purchase wood? Did you see the seller's ad on CL or other venue and make an offer to him? Or, did his "offer to buy" state the amt you would pay per cord?
2. Was there an acceptance of the "offer?" Did you call the seller and agree to pay so much per cord?
3. Was there an understanding on what constitutes a "cord?" Sometimes in these situations there is a disagreement on the size of the cord. A cord of wood measures: 4' by 4' by 8' (128 cubic feet). Is there a possibility the seller believes that he delivered that much wood to you?
At Court: as I believe that your "agreement" with the seller has terminated, your rights are based on his breach of performance. Under Idaho Law, you had the right to delivery of the wood upon payment. Since you paid for the wood and did not have the opportunity to inspect the wood or the amount of wood delivered and now believe that you have not received all the wood you paid for, your options are as follows:
1. You may reject the amt of wood you have received, as well as reject any offer to deliver more wood. You may not use any wood and must hold it for the seller to come pick up. You might receive a message from the seller saying that he will furnish the balance of delivering the wood that he owes you, in which case you probably would want to wait a week to 10 days before you notify the seller that you are rejecting the 2 cords because he refuses to deliver the 3rd. You will need to file suit against the seller for breach of performance.
2. You may reject the remaining cord but keep the wood that you have received and use it immediately. You must notify the seller that you are rejecting the balance of wood owed you and will seek reimbursement for the 3rd cord, but you have accepted the 2 cords and will use them.
The key to your success is communication with the seller. You should not hesitate to write him an email or txt or message that he 1) breached his performance by refusing to deliver 3 cords of wood. That you will accept the 2 cords as "partial" performance, but do not forgive the remaining cord and will need to hire counsel to recover it, together with attorney fees. Good luck!
One of the problems with verbal contracts, despite being generally enforceable (outside of conditions imposed by the Statute of Frauds or other possible laws in your state) is the element of proving that such a contract took place. Also, one has to consider the cost of legal action in relation to the damages.
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