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Ely
Ely, Counselor at Law
Category: Legal
Satisfied Customers: 99978
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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I had a contract with a blogger to wear my product. In the

Customer Question

I had a contract with a blogger to wear my product. In the contract it stated that she was to remain in possession of the item at all times and to return the property to the carrier for hire upon completion (which was FedEx). Instead she is now claiming her husband/assistant dropped the package off in the Taco Bell headquarters mail room and claims FedEx must have stolen in it. When the package weighed in at FedEx it appeared to only weigh 1lb when it shoud have weighed nearly 3lbs. The package did appear to be cut and received an empty box. However, because it was not directly given to FedEx we have no way of knowing the weight prior to that first weigh in. They do not want to pay to replace the package (valued at $5000) and are only willing to pay 1/5th of the cost. I'm contemplating taking matters further but am not sure if I even have a shot of enforcing this contract?
Submitted: 4 months ago.
Category: Legal
Expert:  Ely replied 4 months ago.

Hello and welcome to JustAnswer. Please note: This is general information for educational purposes only and is not legal advice. No specific course of action is proposed herein, and no attorney-client relationship or privilege is formed by speaking to an expert on this site. By continuing, you confirm that you understand and agree to these terms.

I am sorry to hear about this situation. Their claims do not make sense. If they dropped the item, then what did they ship? If they did not ship it, then how could a FedEx employee have stolen it? Or are they claiming that they they did ship it, but the FedEx employee cut out the item from the package? Please clarify. Thanks.

This is not an answer, but an information request. I need this information to answer your question. Please reply, so I can answer your question. Thank you in advance.

Customer: replied 4 months ago.
Hi Ely,They are claiming they took the following steps1. The put the item in the box on Sunday night.
2. On Monday morning the husband finished taping the box up at his place of employment and then left the box with the handbag inside at the Taco Bell mailroom from approximately 7am - 12pm.
3. The FedEx driver picked up the box at 12:28pm.
4. FedEx scanned the box into their hub at approximately 8pm.The blogger is stating that she shipped the item but believes FedEx stole the item and it should be between FedEx and I to resolve the situation.
Expert:  Ely replied 4 months ago.

Thank you.

It is up to you to decide whether you BELIEVE them and pursue FedEx, or, to pursue the sender. Frankly, this whole situation sounds iffy and likely, they are the ones responsible.

To sue in a state court, one needs to have a "cause of action." There are numerous causes of action, such as "breach of contract," "negligence," "fraud," "unjust enrichment," etc., as well as causes of action rooted in statutory law. Every state has their own although they are very similar to each other in every state because they all stem from the same common law. A pleading in Court needs at least one cause of action, although it is not unusual to have more than one.

Herein, this can be a case for breach of contract, conversion, and interference with chattel.

Breach of contract is self explanatory.

Conversion is civil theft.

Interference with chattel is interference with proper ownership of an item.

Likely, FedEx would disavow any wrongdoing, and the Court is likely to believe FedEx over them, if FedEx is subpoenaed to reply.

I hope this helps and clarifies. Please use the SEND or REPLY button to keep chatting, or please RATE when finished. You may always ask follow ups at no charge after rating. Kindly rate my answer as one of TOP THREE FACES/STARS and then SUBMIT, as this is how experts get credit for our time. Rating my answer the bottom two faces/stars (or failing to submit the rating) does not give me credit and reflects poorly on me, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith with a positive rating.

Customer: replied 4 months ago.
Hi there,Thank you. I've uploaded the actual contract (very brief-1 page) to see if you can understand if this was in fact a breach of contract based on the evidence as well as the contract in place.
Expert:  Ely replied 4 months ago.
Apologies - the contract did not seem to have attached. Please, try again?
Customer: replied 4 months ago.
My bad, this should work now.
Expert:  Ely replied 4 months ago.
Thanks.
The elements of a cause of action for breach of contract are (1) the existence of the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to the plaintiff. (Reichert v. General Ins. Co. (1968) 68 Cal.2d 822, 830 [69 Cal.Rptr. 321, 442 P.2d 377].)
The contract is clear in that she had to return the item. It even discusses loss reimbursement.
So yes, breach of contract may apply, along with conversion and interference with chattel, as described earlier.
Gentle Reminder: Please, use REPLY or SEND button to keep chatting, or RATE POSITIVELY and SUBMIT your rating when we are finished. You may always ask follow ups at no charge after rating.
Expert:  Ely replied 4 months ago.
Hello again. This is a courtesy check in to see if you needed anything else in regards ***** ***** question because you never responded or replied positively. I am simply touching base. Let me know. Thanks!