Question

Einstein-Moomjy, Inc., is a large retail distributor of carpets. In August 1999, at an annual clearance sale held by Einstein Moomjy, Furst purchased five remnant carpets for his home for $10,139.68. One of these carpets was the "Mystery Ivory" carpet. Attached to the Mystery Ivory carpet at the time of its sale was a tag containing the following information:
The Back Yd.
Einstein Moomjy, The Carpet Department Store
REMNANT
REDUCED FOR CLEARANCE
SIZE: n1 11940 in 3 319
REGULAR PRICE $5,775-
SALE PRICE
$1,499-
QUALITY: Mystery
COLOR: Ivory
Fibre: Wool
Sale
1,199
When the Mystery Ivory carpet was delivered to his home, Furst noticed that the carpet was damaged and smaller than the size indicated on the sales invoice.
He complained about the condition and size of the carpet to Einstein Moomjy, who offered either a refund of the sale price of $1,199.00 or a similar carpet at an additional price. Einstein Moomjy claimed that the Mystery Ivory carpet was a high quality "Ireloom" white wool carpet that had been tagged mistakenly with the wrong sale price. Furst demanded that Einstein Moomjy comply with the warranty on the back of the sales invoice. The invoice promised that if the carpets purchased were not delivered by the scheduled delivery date, Furst had the choice of canceling the "order with a prompt full refund" or "accepting delivery at a specific later date." Furst insisted on delivery of an undamaged Ireloom carpet at the size he ordered and at the price he paid. When Einstein Moomjy refused to replace the Ireloom carpet at that price, Furst sued Einstein Moomjy. The court determined that Furst's "ascertainable loss" was the fair market or replacement value of the carpet, but it would not permit him to introduce evidence of the price tag to prove replacement value. The trial court excluded the use of the unmarked-down regular price on the sales tag as evidence of the market value of the Ireloom carpet.
The court also barred testimony from Furst's interior decorator regarding her investigation of market prices and testimony from defendant Moomjy regarding the market value of the Ireloom carpet. Because Furst could not prove replacement value, the court awarded him the purchase price. Was this ruling correct?



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  • CreatedJuly 16, 2014
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