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Here's my issue. A gal came to look at a horse that I had…

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Here's my issue. A...

Here's my issue. A gal came to look at a horse that I had for sale. I told her where I bought the horse, how long I'd had him, that I only rode him one time (which he was great for, but did start to talk to my other 2 horses on the way home after he heard them talking to him, which I told the gal about) and that I was selling him because he was mean to my big horse. I asked her several times if she wanted to saddle and ride him and she declined.The next day she texts and asks if her stepson can come out and ride him; I said sure. Stepson shows up and I ask him if he is gonna ride him and he says no, he just wants to look at him.After looking at him he says we'll take him. He said he'd be out the next day to pick him up. I texted the gal and said I guess you own a new horse. She texted and said she could meet me in town that night and she'd give me a check, which we did. This was Thursday night.Friday stepson picked up the horse. I didn't have the brand inspection done yet but said I'd get it to them.Sunday stepson rides him with no issues. Monday night husband rides him and gets bucked off. I get contacted Monday night about this and they ask if I'll take the horse back. I call gal the next day to hear the story. I told her to let me think on it to see what I can do. She mentions on the phone and in texts that they'll keep him until I find another buyer for him.In the meantime the husband contacts me and asks me to call him, which I do. He tells me the story and wants his money back. Says the horse can stay at their house until I find someone else to take him. I guess they didn't understand that they bought the horse so hes not mine to find another buyer for.After the conversation, wife texts and says stepson will bring the horse back tomorrow and husband stopped payment on the check. I said brand inspection is in their names and I made no guarantees about the horse. (I never guarantee a horse is anything but sound and in this case I never even did that, even though he is).Suddenly husband decides to bring the horse back here, tonight, while I'm gone and dumps him back in the pasture with my big horse that he picks on.So now I have a horse at my house, brand inspection is in buyer's name and they stopped payment on the check.I'm wondering about taking them to court. Obviously they have buyer's remorse but I believe you can't just change your mind after a purchase like this.

Lawyer's Assistant: Because real estate law varies from place to place, can you tell me what state this is in?

Montana. This is about a horse purchase, not real estate.

Lawyer's Assistant: Has anything been filed or reported?

No

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

Not that I can think of.

Submitted: 1 month ago.Category: Legal
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Answered in 6 minutes by:
3/14/2018
Lawyer: legalgems, Lawyer replied 1 month ago
legalgems
legalgems, Lawyer
Category: Legal
Satisfied Customers: 12,570
Experience: Just Answer consultant at Self employed
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Hello! I will be reviewing your question and posting a response momentarily; if you have any follow up questions please respond here. Thanks!

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Lawyer: legalgems, Lawyer replied 1 month ago

I am sorry to hear this particularly if this horse may cause injuries to your other horse.

Essentially a contract, whether oral, written or implied, is binding per the terms of the contract.

While a seller has a duty to disclose known material facts that affect the price/desirability of the horse, if the horse is bought "as is" and the seller has no knowledge of the issue then it is not possible to disclose. Presumably riding skill comes into play as well.

The buyer has a duty to exercise due diligence so normally that would require riding the horse to determine the horse is as desired.

The seller can sue the individual in small claims to enforce the contract- ie to return the horse, pay the funds owing per the contract, and possibly lodging/feed expenses as well.

Small claims is appropriate for cases under $3000 - please see:

https://dojmt.gov/consumer/guide-to-small-claims-court/

Otherwise general civil court would be appropriate.

The idea is to give the plaintiff (seller) the benefit of the bargain so they are in the position the contract intended.

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Customer reply replied 1 month ago
Also when I spoke to the husband yesterday afternoon on the phone, he said they would keep the horse in a separate pen although next to another horse until I found another buyer. Then he suddenly stopped payment on the check and dumped the horse at my house when I told him not to and I wasn't hime
Lawyer: legalgems, Lawyer replied 1 month ago

It appears we cross posted -can you verify you reviewed the above response?

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Customer reply replied 1 month ago
I was probably impatient and we cross posted. So in Carbon County MT, it states $7000 is small claims and up to $12,000 is civil. I sold the horse for $3500, now there will be filing fees, service fees and feed and board. Is it an option to file in civil and not small claims as I know it's harder to get the money after judgment in small claims?
Lawyer: legalgems, Lawyer replied 1 month ago

Thanks for your patience as I located the statute;

unfortunately the statute states that small claims has jurisdiction; please see:

25-35-502. Jurisdiction. (1) The small claims court has jurisdiction over all actions for the recovery of money or specific personal property when the amount claimed does not exceed $7,000, exclusive of costs, and the defendant can be served within the county where the action is commenced.

(2) The small claims court has jurisdiction over an interpleader under 25-35-508 in which the amount claimed does not exceed $7,000.

Often times the defendant will pay the judgment (or even offer to settle if they know they are going to lose) because it does get reported and negatively affects one's credit score.

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Customer reply replied 1 month ago
Do you think I have a winning case? Is it worth pursuing?
Lawyer: legalgems, Lawyer replied 1 month ago

Generally if a check is canceled then that is proof that there was an offer, acceptance and consideration.

It would indicate an intent to form a contract.

One can submit an affidavit setting forth their version of the facts, such as the condition of the horse, the refusal to exercise due diligence (riding the horse to verify compatability) etc.

Of course it depends on the judge but generally if the party can prove a contract the court will enforce the terms of the contract.

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Customer reply replied 1 month ago
I spoke with justice court today and because there are ongoing charges (feed and board), it will be a civil case and not small claims, per the judge. Still the same court but probably not as quick. Any advice on filing that I should know? Verbiage to use, etc?
Lawyer: legalgems, Lawyer replied 1 month ago

I cannot find any statute that supports that; was the clerk able to provide a statute to that effect?
If the civil court does not have jurisdiction then the court will reject the filing.

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Customer reply replied 1 month ago
While I was in the phone with the clerk, I could hear her asking him my questions and hum responding. I even asked if I submitted the claim with the purchase price and a set amount for board if that would qualify for small claims, and when she asked the judge he said no, since there was no contract stating that if in fact the horse didn't work for them that they could return him to me, etc. I would like to file small claims but it appears this judge wants it filled civilly which of course isn't as speedy as small claims. I worry about this horse potentially hurting my other horse(s) while I have to keep him.
Lawyer: legalgems, Lawyer replied 1 month ago

Normally the court will look at the circumstances to determine if there was a verbal or implied contract; so if there is proof of payment the court will normally find a contract-which would mean the buyer would be entitled to possession.

However, if the judge is stating something different then that would normally be followed; normally the judge won't give an opinion over the phone so that is odd.

One option (but it does not guarantee payment) is that the horse can be boarded at a third party facility and the cost of that can be added to the lawsuit as "reasonably foreseeable and proximately caused damages" but since a plaintiff has a duty to mitigate/reduce damages whenever possible the judge may deny it if they determine that a paddock (I believe that's the term) could have easily been arranged to avoid contact.

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Customer reply replied 1 month ago
Ok, so can I sell this horse and Sue for the difference or do I have to hold on to hum & keep feeding & boarding him?
Lawyer: legalgems, Lawyer replied 1 month ago

There is a legal concept called "anticipatory breach" of contract where one party indicates they have no intent to proceed with the contract.

In such cases the nonbreaching party may consider the contract breached and sell the property and sue for damages (ie boarding costs, decreased second contract sale price -though the seller does have a duty to mitigate damages to ensure that a fair market value is received).

Often a letter is sent stating that since the party is in breach the seller will attempt to locate another buyer and sue for the difference/damages.

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Customer reply replied 1 month ago
Do u send the letter to the previous buyer that this is my intent? The paperwork for filing this case in my county indicates that I need to send the buyer a letter asking for payment, then give due time for such pay (which won't happen). Should I send the demand letter asking for payment, wait the 10 days, then send a letter stating that I will be selling the horse and suing for the difference, then file paperwork? Or after selling the horse, should I send a second letter asking for the difference, wait for response and then file paperwork with the court?
Customer reply replied 1 month ago
Sorry, that should have said do I, not do you.
Lawyer: legalgems, Lawyer replied 1 month ago

Yes that is correct; to put them on notice.

Then before filing suit a demand letter is sent; I believe I sent a link to that above but just in case:

https://www.consumer.ftc.gov/blog/2015/09/how-write-effective-complaint-letter

This is more for business disputes but it can be modified for breach of contract and a demand for money.

The demand letter can request money, stating that if the money is not received and the horse is not retrieved by X date (10 days) then the party will proceed with their legal options which may include an attempt to resell the horse, or file suit.

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Customer reply replied 1 month ago
Just to clarify, first I send a letter demanding payment in full, wait 10 days, then send a letter that I'm going to sell the horse and they're responsible for the difference, then sell the horse and send another ltr stating the difference owed, then when they don't pay file the suit. Is that about right?
Lawyer: legalgems, Lawyer replied 1 month ago
that is correct!
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Customer reply replied 1 month ago
Today I will be sending out a demand for payment letter. I have noticed a couple of things about this horse since the buyers brought him back. First on Saturday, it took me approximately 45 minutes to catch him. I actually had to have my son come out and I caught a different horse; then my son held him while I finally caught the returned horse. This has not previously been an issue. I'm pretty savvy at catching hard to catch horses and this horse was nearly impossible. Second, this horse appears to be lame in his right front. I'm not sure what these buyers did to the horse but he is not sound now.If the buyers don't respond to the demand letter (which I presume they will not), I will send a letter to the buyers stating that I will be taking this horse to the local sale and running him through loose because he isn't sound any longer. The only way I can do this is to get the brand inspection on the horse back into my name. After I receive the proceeds of the horse, I'll send another letter to the buyers demanding payment of the difference. Does this seem reasonable?
Lawyer: legalgems, Lawyer replied 1 month ago

Please keep in mind we can't give specific legal advice; we can only provide information.

As such we can't advise whether something is reasonable, especially because that will vary depending on the judge assigned to the case.

There is a doctrine called 'res ipsa loquitor' - the thing speaks for itself. So if a party is in exclusive possession of property (an a horse is deemed property) and it is damaged, the court may presume negligence on the possessor and render judgment for the damages (ie decrease in value, medical bills, etc).

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