This writing, true to the last detail is meant to give piano buyers a heads up about how to handle a situation where an Oral Agreement may be breached by a seller.
The following ad was placed at the on line Fresno Bee Classifieds website: Published 07/12/07 00:00:00 PIANO Baldwin Baby Grand cherry, xlnt cond pd over $20k Sacrifice $4,500 ( telephone number listed) ————- View this ad at (link given)
On Friday the 13th, 2007, an ominous day cloaked in superstition, I phoned the owner of a Baldwin “Artist Series” grand about arranging to see and play it. Located about 12 miles from my home, the piano was housed at a horse ranch on Fresno’s northeast periphery. Pulling into a dusty driveway next to a corral of old-looking studs and with 5 barking dogs including a Doberman, surrounding my vehicle, I froze in fear behind my wheel. When the owner, a young looking, bleached blonde, finally emerged from the main house, and padlocked the dogs, I carefully stepped out of my van into a pile of dung. Despite my awkward and inelegant entrance into this rural home, I found the piano to be worth all my trouble. A stunning looking French Provincial grand in cherry wood greeted me that had a golden, glowing tone and an amazing dynamic range. Sinking deeply into the keys, I felt my fingers reach directly into the strings, pulling my very essence out of it.
Responding positively to my playing, the owner engaged me in musical conversation, and said that her brother was a celebrated pianist who performed at a local hot spot in the Bohemian Tower District. Immediately his name rang a bell, since I had once replaced him, doing a one night stand for tips only at the well known, “Daily Planet.” Ironically, I vividly recalled a tip cup sitting atop a Yamaha grand and a blast of hot air engulfing me every time a customer entered.
I had carefully researched the Baldwin medium size, 5′ 8″ inch grand even before I had an opportunity to play it. Having previously acquired its serial number from the seller husband during our initial phone conversation the morning before, I ascertained from thumbing through Larry Fine’s Piano Book, that the Baldwin “Artist series” grands manufactured in the mid- 90′s were definitely worth my time. In 1999, however, a takeover of the company spelled problems I didn’t want to contend with. Meanwhile, the Fresno Piano Store had stocked some mighty decent Baldwins in the 90′s when the company’s new grands were supposedly making a major comeback.
The piano that grabbed my attention in the private party marketplace, was selling for an insanely low bargain price of $4,500! And a rush to move it out the door, was ignited by the owners’ imminent move to Utah. I guess that’s why the seller’s wife quickly accepted my $50 deposit with a promise to bring the balance following a wire transfer of funds from my Franklin Templeton IRA into my checking account. As part of the agreement, I promised her that the money would be available in “one to three” business days. Since a Templeton investment associate gave me a verification number for the transaction that very day, it was was documentation that I had entered into a “good faith” contract with the seller.
Within 24 hours of this verbal agreement forged with a check, I received a disturbing phone call from the piano owner’s husband that my deposit was too “small to hold the piano,” and that another buyer was coming to his place the very next morning (on Sunday) to hand him “cash.” His words had a male chauvinist ring to them as he talked down to me and insinuated that my promise to deliver the money couldn’t be trusted. This was despite the fact that his wife had my business card with contact info, websites, education, etc and the day before, had expressed admiration for my musical activities.
I felt like I was shot in the stomach! My voice nearly died, and I sounded meek and defenseless. I’d been caught off guard with my pants down! After a disturbing conversational exchange, dominated by the piano owner’s boisterous, bullying voice, I decided to phone two lawyers for advice who just happened to be parents of piano students. Both told me in no uncertain terms that the parties had “breached an oral contract.” In light of the situation, they advised me to file a small claims action. (The only exposure I had to the small claims court system was when I learned about “Rebecca McGregor’s” cross- country proceedings in Lawrenceville, Georgia, a circus court of least resort with Mr. York, “piano tuna’” as her sidekick expert witness>)
Now it was Saturday night, July 14th, and I was waging a war against the ticking clock, painfully aware that the buyer was getting closer to claiming ownership of this latest dream piano that was far too tantalizing to leave behind.
At 3 a.m. I gathered my wits and typed out a narrative of events, printed it out and attached a resume. At approximately 4 a.m. I phoned the “ASAP Courier Service” to deliver my materials to the seller first thing that very Sunday morning. I emphasized in my statement of fact, that an oral contract was forged and then violated and that I had every intention of taking the matter to court. The packet was successfully delivered and signed for by the seller husband at 8:55 a.m. on July 15th, with a receipt returned to me that was added to my manila folder labeled “Baldwin grand piano legal case.”
On Monday, July 16th, I raced down to the Small Claims court section of Fresno County after I had drafted a 5-page, single spaced Declaration with 4 Exhibit attachments, labeled “A through D” and I filled out even more pro forma papers in the clerk’s area. I conjectured that the County sheriff’s process service would be best because of the wild dogs surrounding any trespassing car entering through the dust filled driveway. (throw in a few pompous ass chickens sauntering across the property)
In the process of drawing up my court papers, I had serendipitously encountered a legal research based website that defined an “ORAL CONTRACT” and used the sale of a piano as an example. What a perfect opportunity to copy paste sections or paragraphs about Contract law and intersperse each part with the facts of my case. It was a pro se plaintiff’s dream opportunity to set the record straight cloaked in perfect judicial language. (See attached pleadings).
I must have lingered on the 2nd floor of Superior Court for at least 2 eternally long hours because the clerks ambled around like snails and spent at least an hour stapling another litigant’s papers right before my eyes. I wanted to reach over and grab one of them by the neck and do the stapling for her, because I had to be back home to teach a piano student in 45 minutes.
It was worth all the trouble and inconvenience. Once the case was filed and fees paid, I had the goods in my hands, and a court date set for “September 6 at 8:45 in Dept 3.” The challenge would be to successfully effect service on the parties because they had planned an imminent move to Utah. For all I knew the piano probably had already slipped out of my hands the day before, but just the same, I plodded on, knowing the law was on my side!
Fortunately, I experienced a growing and heart-warming swell of cyber and telephone support from many friends, one of whom was “Fujie,” my steadfast adult piano student (“Samick, York, Tofujie and Me”). She stood by me like a rock solid pillar. Owning a Real Estate Broker’s license, she located invaluable information about the sellers. As it turned out, the seller wife was a broker for a prominent Realtor company, who, of all people, should have known the meaning of an “Oral Contract.” Meanwhile, Fujie strategically obtained the parcel number on the sellers’ property that was apparently still in escrow. Bantering about all that had happened over a short period of time, we both considered the possibility of attaching a lien to the home if the court awarded me a favorable judgment. In any case, I was ready to roll, and felt my growing empowerment.
The events of the next 24 hours were the most sweeping and dramatic. I had some “plants” call the husband owner and ask if the piano was still for sale. As it played out, he had variations on the same theme in his replies. He declared to one inquirer that he had decided “not to sell it,” and when York phoned with a disguised voice, the piano owner said he was going to take “piano lessons.” When “Rebecca McGregor” called using an alias, and proposed to give him $5000 for the piano, ($500 above the asking price), he admitted that he had been offered “$6500″ by another buyer but that he had still decided not to sell the piano. He even said that some woman had placed a deposit on the piano, and if he changed his mind, he would contact her. The very erratic plot thickened and was worthy of a “Sixty Minutes” segment!
It had slowly but surely become obvious that the sellers were probably wooed by GREED–enough to break the law. But I also surmised that they’d surreptitiously sold the piano to the buyer who offered them “$6500,” ostensibly in cash. I thought immediately about how Jimmy Hoffa had been secretly wiped out without witnesses to the crime. Perhaps the sellers might erase me with a silencer if I dared to trespass onto their property with the payment balance. I was caught between a rock and a hard place, imagining horses let loose to stampede me, and unhealthy looking chickens relentlessly pecking away at me, leaving indelible scars!
On Tuesday, July 17th, at midnight, just 15 or so hours after my court papers were filed down at Superior Court, I discovered that my funds had been successfully wired into my checking account a day earlier than expected, and I could therefore now back up a money order for the balance on the piano. Right then and there, I stormed into action, and copy/pasted the information from my On line account onto a Word document, printed it out and faxed it to the seller, at her place of business. In this communication, she would ascertain that I had the funds I promised to deliver. I also faxed her a copy of the title page of the small claims lawsuit and two additional segments from my Declaration, with lettered exhibits. (All of my e mails to the owner’s registered e-address had been returned, so faxing them to her place of business was definitely the best way to communicate) In a separate fax, I indicated that I would only withdraw the lawsuit for Breach of Contract with damages, if the Baldwin piano came into my immediate possession following payment. I wanted a guarantee that the dogs would be safely contained when I entered the property and that I would get a written receipt with a statement of transfer into my ownership. (I put the seller’s “APN,” property parcel number next to her address)
Meanwhile the wife owner was mum.. not getting back to me.. ignoring me and my faxes completely. But despite her registered apathy, and once I had the cash successfully deposited into my account, I braced myself and aggressively went in for the killing. With the seller’s cell phone number in hand, (that she had given me on July 13th), I dialed it on early Tuesday morning, July 17th, and pressed the “record” button to completely capture the next soap opera segment.
On my first two phone attempts, I heard an automated voice say that the party was “not available.” With no way of leaving a message, I experienced my instant ex-communication from the seller’s life, (she happened to be Mormon) but continued to carry on. A few moments later, in the nick of time, the phone rang, and I anxiously picked it up. It was the seller wife, who started SCREAMING so loudly that I could hardly hear myself think. But before things had escalated to a point where we were both shouting each other down, I heard the seller say that I was “stalking her,” and that she was in “Utah.” When the hysteria died down, she ordered me to “take the piano,” and “arrange for the movers.” Uncannily, I had already contacted the movers on the very day I placed the deposit since the owner had urged me to do so.
The rest went fairly smoothly. The seller husband was soon on the phone with me insisting he would only accept “cash,” instead of the “money order” I had promised to deliver, but would give me a written receipt for it. Fortunately, Fujie agreed to accompany me to the ranch after we stopped off at “Naked Fish” for a Japanese banquet. While she deftly used chopsticks, I fumbled with them, bemoaning the fact that I hadn’t the coordination she had enviously demonstrated. After a hearty and delectable lunch, we both had renewed energy and determination to make the last lap of the journey.
At 2:30 sharp, Tuesday July 17, 2007, the two of us arrived at the horse and chicken farm and shook hands with the seller husband, whose arrogant voice was now a stern monotone. In a business-like way, he counted out the bills I handed him as I plunged into the piano once again. Fujie, the roving photographer, who looked like a mafia operative in her dark shades, captured it all on digital. Before we left, I reminded myself to take the piano bench with me since York had specifically recommended it. When I thought about the idea, it made practical and strategic sense.
On Wednesday, July 18, 2007, just a day following the Baldwin purchase, I received my incredible new musical treasure and played it for a solid hour. As promised, Fujie stopped by to take even more photos, and York popped in unexpectedly with a bag filled with two nectarines, one onion, and a green pepper. Both visitors were drooling over the piano and couldn’t stop praising it. Since I learned it was York’s birthday, I let him keep the twenty dollars he found in a pouch beneath the piano because he deserved compensation for tightening up the Baldwin pedal rods, and filling in some little holes that needed putty. But maybe he should have returned the cash to the sellers just in case they decided to file a counter-suit against me. But I wondered whether the seller had planted the money? Fuji saw York wink when he flashed the twenty dollar bill as he lay beneath the piano inspecting it, and who knows, the senior tuner, with his deft hands, could have performed a Houdini like stunt while surfing under the instrument. He had an impish look on his face.
Whatever the case, the story had a happy ending and the Baldwin dream piano, the prize, in the aftermath of a passionately waged war, landed gracefully among 4 pianos and two digital keyboards.
Readers may share my court pleadings as follows. Since the lawsuit had been dropped I omitted the Defendants’ names. But there was no stipulation made orally or in writing that the story and events surrounding the Baldwin could not be written about.
DECLARATION AND ATTACHED EXHIBITS
Plaintiff, Shirley Kirsten resides at__________________ Fresno , California , Telephone: ________________
Defendants, ________ reside at__________ Tel: ________ Alternate Phone for______ Realtor:______
Note that Plaintiff has attached 4 Exhibits for the Court to Review that are referenced within her Declaration:
These are true and correct copies of said documents:
Plaintiff’s Declaration and:
Exhibits–True and Correct copies of:
“A” July 12, 2007 posted Fresno Bee On line Ad pertaining to the sale of a Baldwin “baby grand” piano with advertised price of “$4500″ and telephone contact number, _____ that belongs to ______, Sellers, ______ Fresno, CA ________.
“B” Transaction history from Franklin Templeton Mutual Funds on line account as it pertains to Plaintiff Shirley Kirsten’s July 13, 2007 processed withdrawal of $5500 to be electronically wired from Franklin Templeton Mutual Funds to Washington Mutual Bank, Shaw and Fruit, Fresno, California to purchase a Baldwin “baby grand” piano advertised in the Fresno Bee, July 12, 2007 by ________. This is a true and correct copy of information ascertained at Franklintempleton.com by Buyer with reference to her Mutual Funds account. ____, seller was informed that this transaction would be made on July 13, 2007 when she, Seller, entered into an oral contract with Buyer that related to the sale of her Baldwin “baby grand piano,” for the amount of $4500, and accepted a deposit check of $50 from Buyer, Shirley Kirsten as an advance on the balance with a promise that the balance on the piano, would be delivered in person by Shirley Kirsten with a Money Order, latest, Wednesday, July 18, 2007.
“C” Statement of facts written by Buyer, Shirley Kirsten and delivered to____ by ASAP COURIER Service on Sunday, July 15, 2007, 8:55 a.m., that also included Plaintiff’s Resume, CD, Various music programs, Franklin Templeton upper portion of statement with verification number for $5500 withdrawal processed on July 13, 2007 by Plaintiff, Shirley Kirsten.
“D” ASAP Courier Service Receipt, dated, Sunday, July15, 2007 with seller,_____ signature
“A contract intends to formalize an agreement between two or more parties, in relation to a particular subject.” I, Shirley Kirsten, Plaintiff and Buyer, formalized an agreement with ______Defendant and Seller, on Friday, July 13, 2007 at her residence, __________ regarding the purchase a Baldwin grand piano, serial number “323760.” The Sellers, ____ had advertised the sale of a Baldwin “baby grand piano” for the price of $4500, in the Fresno Bee on July 12, 2007. (See Attached Exhibit “A”- Fresno Bee on line ad for this Baldwin piano—a true and correct copy is provided)
The Elements of a Contract
Typically, in order to be enforceable, a contract must involve the following elements:
A “Meeting of the Minds” (Mutual Consent)
The parties to the contract have a mutual understanding of what the contract covers. For example, in a contract for the sale of a “mustang”, the buyer thinks he will obtain a car and the seller believes he is contracting to sell a horse, there is no meeting of the minds and the contract will likely be held unenforceable.
There was a meeting of the minds between the Buyer, Shirley Kirsten, and the Seller, __________, that a Baldwin grand piano, model R226, serial number 323760 (manufactured in 1995) was up for sale. In good faith the Buyer, Shirley Kirsten placed a deposit check in the amount of $50.00 in the hands of Seller, _____ on Friday, July 13, 2007, as an advance on the balance of $4500 that was to be paid in full, by latest, Wednesday, July 18, 2007. Buyer, Shirley Kirsten informed the Seller,______ that she was going to immediately expedite the wiring of electronic funds from her Franklin Templeton Profit Sharing Fund into her personal checking account at Washington Mutual Bank on Shaw and Fruit Avenue. Because said funds take “one to three business days” to process, Buyer, Shirley Kirsten informed Seller, ______ that she should expect to receive a money order in the amount of $4500 minus the $50 deposit by Wednesday, July 18, 2007. SEE EXHIBIT “B,” that is a true and correct copy of the withdrawal transaction from Franklin Templeton made by Plaintiff, Shirley Kirsten expedited on July 13, 2007 for $5500. The verification number on this transaction is: “0719477984.” On Friday, July 13, 2007, the Seller was given full disclosure of the Buyer’s intention to purchase the piano, and Seller did not make further demands or requirements of the Buyer, Shirley Kirsten. Additionally, Buyer, made good on her promise to extract funds from her Franklin Templeton Fund, and contacted the fund in the late morning of July 13th, 2007, and put through the transaction with a verification number given to her, as “0719477984.” The Buyer, Shirley Kirsten, was told by an investment associate that the transaction would be commenced at the close of the Stock Market that very day, July 13, 2007, but it would take “one to three” business days for the local bank to channel electronically wired funds into Buyer’s checking account. Buyer, Shirley Kirsten also gave Seller, ____ her business card that contained her specific residential and e mail address and telephone contact information. Seller gave Buyer an additional business phone that traces to ____ Realty in Clovis , CA. TEL:______
Offer and Acceptance
The contract involves an offer (or more than one offer) to another party, who accepts the offer. For example, in a contract for the sale of a piano, the seller may offer the piano to the buyer for $1,000.00. The buyer’s acceptance of that offer is a necessary part of creating a binding contract for the sale of the piano.
The seller,_____ offered the sale of the piano to the Buyer, Shirley Kristen for $4500 which the buyer accepted.
Mutual Consideration (The mutual exchange of something of value)
In order to be valid, the parties to a contract must exchange something of value. In the case of the sale of a piano, the buyer receives something of value in the form of the piano, and the seller receives money.
This consideration was met. The Baldwin grand piano was to be sold to the buyer for the sum of $4500.
While the validity of consideration may be subject to attack on the basis that it is illusory (e.g., one party receives only what the other party was already obligated to provide), or that there is a failure of consideration (e.g., the consideration received by one party is essentially worthless), these defenses will not let a party to a contract escape the consequences of bad negotiation. For example, if a seller enters into a contract to sell a piano for $100, and later gets an offer from somebody else for $1,000, the seller can’t revoke the contract on the basis that the piano was worth a lot more than he bargained to receive.
The seller’s husband, _____, breached a contract with the Buyer, Shirley Kirsten, when he phoned her on the evening of Saturday, July 14, 2007, at approximately 7:30 p.m. a day after an Oral Contract on the piano, was forged between the Buyer, Shirley Kirsten and Seller, ____ and reinforced by a check deposit in the amount of $50, and said that another party had offered “cash” for the piano and would be bringing the money in full, to the Buyer the following day, on Sunday, July 15, 2007. Seller, _____ told Buyer, Shirley Kirsten, that her $50 was “too small a deposit to hold the piano.” Seller, in response offered to immediately bring a “higher deposit,” but seller did not accept the offer. Seller, ____ kept telling Buyer, Shirley Kirsten that he was going to take the “cash” of another buyer and not consider future dealings with Shirley Kirsten on the matter of the Baldwin piano, unless the separate buyer defaulted on bringing cash to the seller on Sunday, July 15, 2007. In that case, Seller said, “he would call” the Buyer. The Court should be informed that the ad placed by the Seller in the Fresno Bee (July 12, 2007) had no mention of immediate cash delivery as a requirement for purchase of the piano. Seller breached contract as soon as he disclosed to the Buyer that he would take payment for the Baldwin piano from another buyer and not honor a pre-existing Oral Contract that also attached a deposit from the Buyer. After Buyer received the phone call from the Seller invalidating the Oral Contract, she left a follow-up phone message for the seller, indicating she would file a “small claims” action against the seller (s) for Breach of Contract. On the next day, Sunday, July 15, 2007, the Buyer, Shirley Kirsten sent by ASAP Courier Service, a statement of facts in the case, that also included the top portion of a Franklin Templeton statement with the verification number related to a $5500 withdrawal transaction along with her resume, CD, and various concert programs. Attached as Exhibit “C” are true and correct copies of the statement of facts in the case and Plaintiff’s resume that were successfully delivered to the Sellers on Sunday, July 15, 2007. Attached as Exhibit “D” is a true and correct copy of the receipt for Delivery of the statement of facts with _________, signature, as he signed for the packet on Sunday, July 15, 2007 at 8:55 a.m.
Performance or Delivery
In order to be enforceable, the action contemplated by the contract must be completed. For example, if the purchaser of a piano pays the $1,000 purchase price, he can enforce the contract to require the delivery of the piano. However, unless the contract provides that delivery will occur before payment, the buyer may not be able to enforce the contract if he does not “perform” by paying the $1,000. Similarly, again depending upon the contract terms, the seller may not be able to enforce the contract without first delivering the piano.
In a typical “breach of contract” action, the party alleging the breach will recite that it performed all of its duties under the contract, whereas the other party failed to perform its duties or obligations.
Buyer, Shirley Kirsten had every intention of purchasing the advertised Baldwin Piano for the demanded price of $4500. Buyer put through the transaction to electronically wire appropriate money from her Franklin Templeton Fund into her personal checking account on July 13th, 2007, in a timely and conscientious way, as promised to the seller, and planned to deliver a Money Order in the amount of $4500 to the SELLER by latest, Wednesday, July 18th, 2007. In exchange for her payment of $4500, Buyer, Shirley Kirsten, fully expected to take possession of the Baldwin grand piano, model R226, serial number 323760 on that day.
Additionally, the following elements may factor into the enforceability of any contract:
It is implicit within all contracts that the parties are acting in good faith. For example, if the seller of a “mustang” knows that the buyer thinks he is purchasing a car, but secretly intends to sell the buyer a horse, the seller is not acting in good faith and the contract will not be enforceable.
Buyer, Shirley Kirsten entered into a “good faith” contract with Seller,____that the merchandise to be sold was indeed a Baldwin Grand piano, “Model R226,” serial number “323760.” Buyer has learned through Discovery that Seller, ____ is a licensed realtor and should have known the meaning of an oral contract with an advanced deposit of $50 attached, so she has no reason to plead ignorance, even though ignorance is not a remedy or defense in this case.
No Violation of Public Policy
In order to be enforceable, a contract cannot violate “public policy.” For example, if the subject matter of a contract is illegal, you cannot enforce the contract. A contract for the sale of illegal drugs, for example, violates public policy and is not enforceable.
Buyer maintains that there was nothing illegal about the seller’s intent to sell the piano or the subject of the transaction.
DAMAGES sought by Plaintiff, Shirley Kirsten: Plaintiff is asking for rightful possession of the Baldwin piano, serial number “323760” upon her delivery of a money order in the amount of $4,450 to the seller by latest, Wednesday, July 18, 2007 as promised. If Seller cannot produce said piano, Buyer wants return of her $50 deposit plus damages of $4450 for loss of opportunity to own the piano.
I swear under penalty of perjury under the Laws of the State of California and under the Constitution and Laws of the United States that the aforementioned is true and correct.
Signed: Shirley Kirsten, Dated, July 16, 2007