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I have a small Brass repair shop a one man shop. I have a nice 20K dedented,new lacquer.But The ower has not picked it up. For over 6 months. About 3 Month ago his girlfriend called me and said .He would pick it up on the 20th of March.I got to talk to his grilfriend 7 days ago. She said would have him call me But No call.
Before I started the job I called the custormer , I gave him a price , and told him it would be finished in a week. He said go ahead with the job.I called him in week with the horn finished. and now its 6 month later. I am thinking about selling It I could uses the repair money. What do you other repair people do in a case like this?? Thanks Harvey

In my opinion, you would be justified in selling it. Do you have a stated policy concerning such? Many businesses make this clear up front. I believe I would contact someone(actual person, or his girlfriend) and give them two weeks to respond with money for the originally contracted repair. If they respond, this is good. If not, sell it.

It it legal to sell the horn?

If he has written policies, then it definitely would be. It's just like dry-cleaning. The business isn't a storage facility, and at most places if you don't pick up your items within the month, you forfeit ownership and the company is not liable for the items after that time period.

mikehorsford wrote:It it legal to sell the horn?

This is a question that comes up on the repair forums quite often. There are laws that govern such an action that vary state-to-state. First and foremost... you must have a stated policy. That's usually followed up with several documented phone calls and sometimes even a certified letter is required. Check with an attorney and find out what your legal options are.

Luckily... in ten years of doing repair work professionally, I've never had a problem. Sometimes it take a few calls.

PS.... Harv... you could just send me that horn for safekeeping!

Sound's like a "mechanic's lien" type of situation.

Sound's like a "mechanic's lien" type of situation.

My thought as well. Though you may not be able to sell it right now, if you lay the proper groundwork I think you could be within your rights to do it at some point in the not-to-distant future. If I were you my first step would be to study up on your state's laws regarding "bailment." This, if I am not mistaken, is a bailment for mutual benefit when he drops it off, but after a while - especially if he hasn't prepaid in full - it starts to look to be more for his benefit than yours. Determination of the relative benefit will affect your duties as a bailor. Then, safest play - get thee to a lawyer. Work with your lawyer on a policy, as already recommended. If you write your first draft you might save a few bucks. Depending on value, filing a mechanic's lien may be the right next move, though I don't know if I would recommend it, depends on the jurisdiction and value. Rely on counsel for that call.

I would check and see what your local laws state. I was thinking Mechanic's Lien myself as well; certified letter too. And, then, if you don't have a policy, set one.

Might be worth it to invest an hour with you attorney about this for two reasons:

1. To see what steps you could take legally on getting your money or possessing the horn.

2. If you don't have a written policy on this sort of thing, have your lawyer write one for you. It should basically be boiler plate so shouldn't take too much time. You will be prepared for 'next time'. And I gurrantee there will be a next time. That's how the public acts.

Better safe than sorry. You make the wrong move, i.e. not a legally defensible one, you could be buying a big pain in the neck. Better the horn sit in the back of the shop for awhile longer until you get answers from a person who knows.

bloke wrote:Harv,

Send him a certified letter - return receipt requested - and let him know that he is very tardy paying for your services. Tell him that he has ten days to pay in full, or the instrument will be sold to cover the cost of the repair...

Good idea. It's fast and legal(most likely). I've done it before and it's very effective.

Mike-ICR wrote:

bloke wrote:Harv,

Send him a certified letter - return receipt requested - and let him know that he is very tardy paying for your services. Tell him that he has ten days to pay in full, or the instrument will be sold to cover the cost of the repair...

Good idea. It's fast and legal(most likely). I've done it before and it's very effective.

Another vote to not bother with all the legal research the earlier posts suggest (that would be more time consuming and expensive than it is worth to you), and just follow this advice.

--

Not to beat a dead horse, but . . .

If you want to waste a lot of time and effort, by all means do what tofu suggests.

If you just follow bloke's suggestion, you will have let the dude know what you intend to do if he doesn't pay, and then you should be free to follow through. The burden would then fall to him to try to sue you, which would not be worth his time, and he would lose anyway. Period.

bloke wrote:Harv,

Send him a certified letter - return receipt requested - and let him know that he is very tardy paying for your services. Tell him that he has ten days to pay in full, or the instrument will be sold to cover the cost of the repair...

...then sell it to me for $900.

What he said.

You're entitled to payment... timely payment. It's not about "storage". It's about payment; it's abolut your livelyhood. Sell it for the repair cost - the buyer will love you!

If you think you'll feel guilty, then sell it at auction and hold the balance in escrow.

If you see a lawer, add that fee to his bill!

J.c.S.

By sending a registered letter with your (new) pick-up policy included you ARE doing the "legal leg work". You could do more if you want. Service providers of all sorts have these policies for a reason. If you send the letter and he signs for it and then doesn't pay on time (or make arrangements to pay) then you may legally do whatever it is you outline in your policy (within reason). I would be careful about selling it for much more than the repair costs because he could (depending on your policy and all the legal loop holes) come to you for the profit.

Uncle Buck wrote:The burden would then fall to him to try to sue you, which would not be worth his time, and he would lose anyway.

That may be the case in Utah, but in PA, in the absence of a written policy clearly stating the length of time after which an item will be considered to have been abandoned—delivered in writing to the customer at the time the item was accepted for repair—tangible property is not considered to have been abandoned by the owner for two years. If the OP were to dispose of the tuba prior to that and owner of the tuba were to sue, not only would it be a slam dunk for the owner, but, if in the opinion of the court, the OP acted in willful ignorance or disregard for the law, be entitled to punitive damages, in addition to compensatory damages and costs.

By posting the query here, the OP clearly demonstrates awareness of potential legal liability should he sell the horn. Consequently, were the OP to disregard the counsel to seek legal advice from a local attorney, it would be extremely difficult (next to impossible) to convince a court that he did not act with willful disregard for the law.

You can do it Tofu's way or Uncle Buck's way. As an attorney, if you were my client, I would advise you to do it Tofu's way; if the tuba owner were my client, I would advise you to do it Uncle Buck''s way.

[Disclaimer: this is not a legal advice, nor is it a solicitation to provide legal advice.]

Pgym.

the elephant wrote:Our old shop had a written policy on the backs of our sales tickets and estimate slips stating that any instrument not picked up by the date written on the top of the ticket would be charged a generic storage fee on a per-day basis. After a certain number of days or if the owner declined to pay the storage fee in addition to whatever his bill was originally then the horn became property of the store and would be sold or used for parts. We actually did this a few times, too.

That works if you've CYA beforehand. From the info the OP has provided, he hasn't, hence the need to solicit advice from the TNFJ.

One additional thought, perhaps it might help; offer him a payment plan. It could be that for various reasons he doesn't have the money and is waiting on your patience till he gets it. Without knowing how much he owes, I'd think you might be able to structure something that would see you with your money in two or three months, and him with the horn. Additionally you could include a clause that a failure either to make timely payments, or to pay in full by xx/xx date would result in forfeture(sp) of said payments and horn.

I figure it does a couple of things:

Gets you some money now.

Obligates him in a way that he currently doesn't seem to be.

Perhaps most importantly it both gives him an out and provides you a faster and cheaper alternative. Then you can look to some of the previous advice to make this easier in the future.

Rob "of course you could always pawn it and let him know where it is "

Rob wrote:"of course you could always pawn it and let him know where it is "

Pawn laws in every jurisdiction in the US require that the pawnor possess clear title to the pawned item in the event that the pawnor defaults, intentionally or unintentionally, on the loan. Depending on the jurisdiction and the value of the item pawned, knowingly pawning an item for which one does NOT possess clear title constitutes anything from petty misdemeanor to Class IV felony theft.

And, contrary to popular belief, possession is NOT nine tenths of the law, except in cases where ownership of the property is BOTH unknown and disputed. In this instance, ownership of the tuba is both known and undisputed.

pgym wrote:And, contrary to popular belief, possession is NOT nine tenths of the law, except in cases where ownership of the property is BOTH unknown and disputed. In this instance, ownership of the tuba is both known and undisputed.

NO NO NO!!! MERE POSSESSION IS NEVER A BASIS FOR CLAIMING OWNERSHIP!

My property law professors in law school were the national experts who write the text books for other law schools to use. At common law, in a circumstance such as this, where the possession of the chattel, in this case the souzy, was to the benefit of the owner, in spite of their being a repair bill against it, the repairman would be considered an involuntary bailee to the benefit of the owner with strict liability for conversion or misdelivery, even though only nominal care need be taken to secure the chattel. But in case you don't believe me, and you want to go to a book store or law library to check them out, look under Fratcher, or under Whitman and Nelson.

This common law rule has been changed by statutory mechanic's or repairman's lien law in most states, but it is still very technical. There are possession time requirements, notice requirements, or how you tell the guy you're going to sell the thing to pay for the bill, the proscribed means of advertising and selling at public auction properly (as in, "highest bidder on the courthouse steps, etc."), restrictions as to how the proceeds and any excess must be applied, any "redemption" period where the owner can show up with cash to pay for everyone's time and trouble and void the sale, and a plethora of other technical requirements that must be met, or the sale is invalid, and the repairman loses. Period. And sometimes you can't do any of that, depending on which state you live in, and the exact nature of how you got to this point, unless you do sue him first. Add to this the fact that in the last 25 years I occasionally had to jump the hoops for a client so he could get paid for repairs, in that case an auto mechanic, and in the firm I work now as office manager instead of practicing, one of the lawyers has mechanic's lien law as a substantial portion of his practice, and this is how it is. I showed up one time, after publication of notice, personal notice, formal proof of the repair bill and that the guy had contracted for the repair work, right on the courthouse steps with the all-terrain 4-wheeler on the trailer ready to call, "Here ye, hear ye," etc., when here comes the owner, cash in hand. I showed him all of the statutory paperwork, totalled up the bill, the costs of publication, my fee, and other incidentals, and gave him a total. He peeled off cash, laid it in my hand, and took his 4-wheeler home. But had I not done all that, he could have hired his own lawyer, and made the repairman cough up the cash for its value so he could go get another one.

What the quoted line from another post is referring to above is a completely different concept, the concept that absent a showing by another person who has a superior claim to title, if a guy holds possession of something long enough, by lawful adverse possession (not by theft or other illegitimate means of acquiring possession), another statutory creation with its own set of requirements, eventually the statute of limitations passes on the ability of the true owner to sue the guy to get the thing or its value back.

SO, unless a person wants to buy the owner another 20K when he shows up looking for his horn after it's already been sold, the advice to get a local lawyer to sort it out is time, money and effort well spent.

Now, my other pet peeve: what does "possession is nine tenths of the law" really mean? I've been there. I've seen it first hand, when I was an intern to a barrister in London. Up until recent years, solicitors, the other kind of British lawyers, had a monopoly on real estate transfers. So young lawyers, just as any apprentice in any other profession or skilled trade, gets all the grunt work, this phrase meant that young lawyers could look forward to spending nine tenths of their time drafting contracts and deeds instead of counseling clients or going to court. And along that same line, ask me another time what "red tape" really means, as I have some real red tape on my bookshelf.