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Do I have enough evidence to prove a verbal contract exists and recover my money spent on materials and the amount promised to m

Fayetteville, NC |

I had a woman call asking me to make 100 foot bracelets for her in return of $2700 by Sept. 30th. She then changed it to 50 for the same amount in return due by the 17th. I finished them early so she decided we would meet on the 12th. She backed out of the meeting on the 12th and has now had no communication with me as of the 18th. I have spent close to $800 dollars in material. I have phone records showing where she called me and we have talked for hours at a time. I also have many receipts showing that I purchased material after our first conversation. Along with all of this I have texts on my phone where I sent her pictures of my bracelets and feet that she requested, as well as texts messages between us regarding making these bracelets. Is this enough evidence?

Is all my phone calls, text messages, and picture messages enough to have a claim? These messages show that she was planning on us meeting and exchanging bracelets for money, but they did not relay the amount of money for the amount of bracelets. If I were to send her a demand letter for the amount owed, do I need to first give her the bracelets and then give her this letter? Or do I send her this letter and once the money is paid give the bracelets to her?

Attorney Answers 3

Posted

It sounds like you do. These kinds of disputes are what Small Claims court is designed for.

The elements you have to prove are:

1) the contract (your emails, texts and your oral testimony of your recollection of phone calls, ous any 3rd party witness who's got personal knowledge of the facts)

2) the breach (your testimony, emails showing your attempts to reach her, 3rd party witness testimony)

3) your performance except for anything her breach prevented you from doing (bring some of the bracelets to court with you) and

4) your damages (your material receipts, your receipts showing what you normally sell these for)

If these weren't custom orders, can you sell them to someone else, If not, why not? Be prepared to answer that question.

Before you sue, send her a demand letter for amount owed by certified mail, return receipt requested, or by FedEx or by registered email (www.rPost.com). That way she knows you're serious and you'll be able to prove her receipt. Warn them that once you sue, the lawsuit becomes a matter of public record, and give her a firm deadline, 2 or 3 from her receipt of your letter, to pay you or you'll have to sue. If she doesn't pay you by your deadline, follow through and sue.

Your letter might also threaten to post this incident on your Facebook page but stick to the facts and/or your opinions. if you post provably false facts, she could sue you for defamation.

PLEASE READ THIS BEFORE YOU COMMENT, EMAIL ME OR PHONE ME. I'm only licensed in CA. This answer doesn't make me your lawyer, and neither do follow-up comments and/or emails and/or phone calls, and you shouldn't expect me to respond to your further questions if you haven't hired me. We need an actual agreement confirmed in writing before any attorney-client relationship is formed. This answer doesn't constitute legal advice, and shouldn't be relied on, since each state has different laws, each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue.

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Posted

I agree with Ms. Koslyn's answer, which leaves very little need for additional comment. My only further suggestion is that you once you have given the intended buyer her written notice with a 2-3 week deadline for making payment, assuming she does not pay, then to speed things along, you may want to list the bracelets online someplace like _Bay or attempt to sell them through another venue even as you are waiting for your Small Claims court date. If you do that and they sell, you still have a claim for the value of the bracelets minus whatever you sold them for & THE COST OF SELLING THEM i.e. listing fees, sales commissions, etc, plus you get some of your money back sooner, and you've already answered the courts questions regarding what you've done to mitigate your damages, what can you expect to recover by selling to another party, etc. If they don't sell, that strengthens your argument that these are made-to-order items that you can't reasonably recover for except from the originally intended purchaser. Good luck!

IMPORTANT LEGAL NOTICE: Ms. Brown’s response to the question above is not legal advice and it does not create an attorney-client relationship. All of Ms. Brown’s responses to questions posted on AVVO are intended as general information based upon the facts stated in the question, and are provided for educational purposes of the public, not any specific individual. If you would like to obtain specific legal advice about this issue, please contact an attorney in your state. Ms. Brown is licensed to practice law in New York. If you would like to contact her directly for a legal consultation, you may do so by calling 718-878-6886 during regular business hours, or anytime by email at: marykatherinebrown@hotmail.com

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Posted

Under certain circumstances, a contract must be in writing to be enforceable. North Carolina law (N.C.G.S. 25-2-201) says that a contract for the sale of goods for $500 or more must be in writing and signed by the party against whom enforcement is sought. In a situation where there is no formal contract, but there may be written communications such as emails or text messages, the sale may still be enforceable if there is enough context in those multiple written communications to show that one person had promised to pay the other person a certain amount of money in return for the goods.

The law provides some additional guidance for sales "between merchants" and sales of "specially manufactured goods. Here is a link to the law: http://www.ncga.state.nc.us/EnactedLegislation/Statutes/HTML/BySection/Chapter_25/GS_25-2-201.html.

The Clerk of Court at your county courthouse can direct you to the forms to fill out to file a small claims court lawsuit.

(The attorney responding is licensed only in the state of North Carolina. This response does NOT constitute legal advice and does NOT create an attorney/ client relationship! Rather, the response is in the form of legal education and is intended to provide general information about the matter in question. Although a response is provided to the specific question, there may be other facts and law relevant to the issue that the questioner has left out and which would make the reply unsuitable. Therefore, the questioner should not base any decision on the answer, but should confer with an attorney in person about the specifics of his or her case.)

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