# Are dealers responsible for marking used products as used?



## Jerrys RR (Jun 28, 2010)

When I buy something from a individual I figure it is up to me to ask the seller if the product is new or used but when I buy a product from a dealer at a train show I expect to be told if he is selling me something that is either pre-owned (even if it has never been taken out of the box) or used. If for no other reason in both cases the item would not be covered by a factory warranty if the product turned out to be defective. 

While at the HAGRS I bought a couple of cabooses. Both were marked down significantly from MSRP. One, as expected, turned out to be new in the box along with all papers. The other (from a different dealer) looked new and was wrapped in plastic in the USAT factory box.

When I got home I found that the 2nd caboose (USAT Wide Vision) looks very good but it shows evidence of use; has what appears to be corrosion on the inside of the metal wheels; is missing any USAT couplers and has Aristo-Craft knuckle couplers on it. The selling price was $75 which is only about $15 less than most mail order dealers would sell this caboose for new in box with warranty, papers, USAT couplers etc.

*Was I wrong for trusting the dealer or was the dealer wrong for not telling me I was buying a 2nd hand caboose?* At least if I knew I was looking at a used caboose I would have taken it out of the box and noticed the wheels and couplers.

I am not going to mention the dealer at this time (I have had good experiences with him in the past). It is possible he was not aware the caboose was used and I intend to give him an opportunity to make an adjustment if he thought the caboose was new.

Jerry


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## Greg Elmassian (Jan 3, 2008)

Dealer was wrong. 

I've gotten product that was "new" and had obvious wear on the wheels, missing detail parts (like the entire bag of parts) or detail parts already applied. 

New means never sold to anyone. Now many dealers will take something out of the box for display and "lose" the detail parts bag, or the couplers, but mounting of a different brand of couplers, that's not new and unused. 

Regards, Greg


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## Totalwrecker (Feb 26, 2009)

I think you should have asked him first. 
He may not open every box and inspect an item as thoroughly as the purchaser. I doubt there was any deception on his part. 

In these forums you hear of loose screws and missing parts all the time which I think most dealers think is a manufacturer's liability. As providers of good service they will help you correct the problem.... I doubt he knew it was repackaged. 

Would be nicer to let him have first response personally. Then you could report the results. 

John


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## jwmurphy (Aug 16, 2008)

There is a difference between a product taken out of the box to be displayed with parts lost and a caboose with couplers of a different brand fitted to it. Whoever put those couplers on the caboose was probably not the dealer but someone running the caboose on their layout with aristo rolling stock. Dealers should mark used stuff as used so they know what they are selling and the buyer knows what he is buying.


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## xo18thfa (Jan 2, 2008)

Yes, of course, dealers are absolutely responsible. If they don't, then they are lying. It's either a direct lie or a lie by omission. It is probably not illegal, but it is morally wrong. You should have asked to, but the dealer has the upper hand. He is the one who has the product and all the time to study it and decide on the strategy of the sale. The dealer needs to be an honest broker. This jerk is like a bar tender who keeps serving drinks to an already drunk customer with car keys in pocket.

If anyone has to even wonder about it, then it's wrong.


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## tmtrainz (Feb 9, 2010)

Before anyone gets too philosophical about what should or shouldn't happen, the buyer needs to contact the seller and discuss the problem. If the seller is reputable, and wishes to run a trustworthy, honest business, then that seller will correct the situation. 

if the seller did this intentionally, then shame on them. Nonetheless, as the Latin says - Caveat emptor - "Let the buyer BEWARE" 

Tom


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## Jerrys RR (Jun 28, 2010)

Posted By Jerrys RR on 29 Jun 2010 09:25 AM 
*I am not going to mention the dealer at this time* (I have had good experiences with him in the past). It is possible he was not aware the caboose was used and I intend to give him an opportunity to make an adjustment if he thought the caboose was new.

Jerry


I am not pre-judging the dealer. I believe the dealer deserves the opportunity to correct the situation. Only if the dealer refuses to do anything will I mention his name. Based on my past experiences with him I expect him to do something.

My reason for posting this topic is because I have noticed more and more dealers are now selling used products of the same brands as they sell new. I have no problem with dealers selling used trains anymore than with a new car dealer selling used cars.

The difference is that a dealer selling new merchandise is representing the manufacturer and it is the manufacturer who ultimately is responsible for what is sold.

A dealer selling used merchandise is not representing the manufacturer but instead is representing himself and as such I think such dealers have an obligation to the buyers (us) to tell us if we are buying used trains with no warranty or if the dealer himself is offering some sort of warranty.

The issue goes beyond this particular dealer. My point is that we may have to start being more careful when we buy things at train shows and not wait until we get home to look carefully at what we bought.

Manufacturers have every right to refuse warranty claims if they have reason to believe that the product is old, discontinued, previously used, damaged or missing parts after delivery to the dealer. 

There is nothing functionally wrong with the caboose. I just paid more than I would have if I had known I was buying someone's used caboose.

Jerry


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## Cougar Rock Rail (Jan 2, 2008)

I don't think you were wrong at all in trusting the dealer, Jerry. It's possible that he took it back from a customer in exchange, who had claimed they didn't use it, but either they either failed to inspect it and/or let you know it wasn't new. Totally unacceptable. 

Keith


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## Pete Thornton (Jan 2, 2008)

He may not open every box and inspect an item as thoroughly as the purchaser. I doubt there was any deception on his part 
That would be my suspicion. He probably didn't realise the item was previously used. Or it may have been acquired in a yard sale where the seller didn't know the difference. 

From a legal prespective, my understanding is that the seller (even a dealer at a show) has to fairly represent the merchantability of the item, especially if it is not new. From the legal dictionary: 
"An implied warranty of merchantability is an unwritten and unspoken guarantee to the buyer that goods purchased conform to ordinary standards of care and that they are of the same average grade, quality, and value as similar goods sold under similar circumstances. In other words, merchantable goods are goods fit for the ordinary purposes for which they are to be used. The Uniform Commercial Code (UCC), adopted by most states, provides that courts may imply a Warranty of merchantability when (1) the seller is the merchant of such goods, and (2) the buyer uses the goods for the ordinary purposes for which such goods are sold (§ 2-314). " 

Used goods are not considered the "same average grade" as new, as far as I know.


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## Robby D (Oct 15, 2009)

As a dealer I would mark the item as used. Sometimes items new out of the box will look to have wheel wear, but that usually is where the car or loco was tested. And as Greg stated we do put cars on display and occasionally we leave out the detail parts when repacking. On USA cars they are notorious for not putting the knuckle couplers in the box. Call the dealer and ask them about it. Maybe they are unaware of it.


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## John J (Dec 29, 2007)

If you have had good service from the dealer before then I would think it was a item that was returned and the dealer didn't open it to see how much it had been used. Also it could have been put in the mix by accident.


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## Jerrys RR (Jun 28, 2010)

Posted By Robby D on 29 Jun 2010 07:28 PM 
Call the dealer and ask them about it. Maybe they are unaware of it. 

Hi Robby,

I agree that it was probably an honest mistake which is why I have not said anything to identify the dealer. I am awaiting a reply to an email I sent to him and I expect that he will make a reasonable adjustment. With the HAGRS just ending I felt it more reasonable to contact him by email (less confrontational) and give him time to respond.

Obviously the dealer involved was not you. The Rock Island GP-40 and Caboose I bought from you are in great shape and running very nicely.

For me the issue is more important than this particular sale as the caboose is in good condition so even if I do not get an adjustment for it being used it will be a relatively inexpensive lesson for me. I realize dealers have a lot of work to do preparing for and setting up a show and mistakes can happen. 

The important thing for me is that in the future I need to be aware that not everything sold by dealers can be assumed to be new-in-box. If I had taken the caboose out of the box at the hotel I would have had the time and opportunity to take it back to the dealer and worked out a resolution before I got home where shipping expense could be part of a resolution.

Had I read a topic such as this before going to the show I would have been more alert, taken the caboose out of the box, and noticed the Aristo couplers on the USAT caboose.

Regards,

Jerry


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## Jerrys RR (Jun 28, 2010)

I received a reply from the dealer about the caboose. The dealer says he told me the caboose was used and that was why the price was reduced. Things can be hectic at a train show and I have had good experiences with this dealer in the past so I am willing to accept his explanation. As far as I am concerned I will forget about it but I still think this topic is worth remembering when buying something at a train show. 

It would have been better if I had taken it out of the package and looked at it (after paying for it) rather than waiting until I got home.

Jerry


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## Greg Elmassian (Jan 3, 2008)

My opinion is that there should have been a sticker saying USED if the rest of the products there in the same place were NEW. 

If the table was a mix of NEW and USED and it was INDICATED that this was the case, then that's acceptable. 

Regards, Greg


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## Spule 4 (Jan 2, 2008)

Watch this, especially with kits......I got a great deal on a Piko kit once.....actually, it turned out to be about 2/3 of a Piko kit. 

Honestly, it worked out better for my needs (I was going to bash it anyways) but would have been nice to know.....


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## Paradise (Jan 9, 2008)

Words are a formality to obscure the truth.


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## takevin (Apr 25, 2010)

Posted By Greg Elmassian on 02 Jul 2010 01:00 PM 
My opinion is that there should have been a sticker saying USED if the rest of the products there in the same place were NEW. 

If the table was a mix of NEW and USED and it was INDICATED that this was the case, then that's acceptable. 

Regards, Greg 
Exactly, it should have been listed as used.


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## Jerrys RR (Jun 28, 2010)

Getting back to the original dealer, he asked if I wanted the USAT hook and loop couplers. When I said I did, he sent not just one pair but two pairs of USAT couplers plus said I could keep the Aristo couplers. I will do business with him again.

Jerry


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