Sale of ‘Frankenstein’ machine a cautionary tale for Facebook Marketplace buyers – and sellers

Anyone who buys or sells items on Facebook Marketplace can learn some lessons from a recent B.C. Supreme Court ruling that awarded a partial refund to a man who says he was sold a “Frankenstein” machine.

Facebook Marketplace has become a go-to site for items big and small, but often people are left unprotected if they have buyer’s remorse.

Dwayne Puhalsky took his case to court after buying an excavator from Roy Barrows for $49,900. Barrows operates a side business of importing used heavy equipment from China for resale in Canada.

Puhalsky did not inspect the excavator before paying for it and taking possession. After driving it, Puhalsky had some concerns that it was “faulty” but still took possession of the piece of equipment, the court ruling said.

“However, in the days following his taking possession of it, the plaintiff became aware of what he asserts were serious deficiencies and defects in the Excavator,” said the court decision. “The defects were consistent with the Excavator being more heavily used and in worse condition than what he expected. Further, the plaintiff contends that the Excavator was a ‘Frankenstein’ machine in that it was reassembled from various parts and given a fresh coat of paint to make it look like it was in better condition than it was in reality.”

Puhalsky sued to get his money back, but also was asking for damages plus to be reimbursed for the expenses incurred in relation to borrowing funds to buy the excavator, and compensation for business opportunities lost because the equipment didn’t work properly. Puhalsky also wanted to be able to keep the excavator because he had spent money to do extensive repairs on it since the purchase.

Puhalsky ended winning some damages in court, but didn’t receive his purchase price back because he had paid for modifications to the equipment. Instead, Puhalsky was awarded money to pay for the estimated cost to repair the excavator. The judge called the decision to do modifications and repairs “puzzling.”

Barrows, who represented himself in court, asserted that he sold the excavator “as is” with not warranty, the court ruling said.

“The defendant contends that the plaintiff could have, but did not, have the Excavator inspected before he took possession of it and did so at his own peril and accepted the risks associated with its purchase,” said the court ruling. “Further, the defendant contends that because the Excavator has now been modified by the plaintiff, the defendant cannot be required to take it back and cancel the agreement. The defendant also objects to the claim that he misrepresented the condition of the Excavator as he says he simply passed on the information he received from the company in China from which he purchased the Excavator.”

One issue that Justice John Gibb-Carsley had to assess was the promised the machine had only been operated at “low hours” – in this case, a listing of 495 hours – before the sale.

Testimony from an equipment expert during the trial estimated that the hours the excavator had logged were more like 4,000 to 5,000 – not the 495 hours listed by the defendant, the court ruling said.

The judge stopped short of refunding all of the purchases price due to the modifications and repairs done by Puhalsky, a warning to anyone who has similar concerns about something they have bought.

“I am puzzled by the plaintiff’s position,” the court ruling said. “Had the plaintiff paid the purchase price and never taken possession of the Excavator, or returned the Excavator without making any modifications to it, his argument might have some merit. However, he has retained the Excavator and yet seeks the return of his purchase price.”

Instead, Puhalsky was awarded nearly $25,000, the estimated cost to repair the excavator, plus another $1,200 that was already spent on it. Puhalsky also won $2,500 in punitive damages.

The judge then summed up the case with a warning to all buyers and sellers.

“The facts of this case are a reminder of the perils of purchasing goods without inspecting them,” said the ruling. “It was clear to me that the plaintiff was so eager to purchase the Excavator that he was imprudent and impatient in not conducting any inspection of the Excavator before he purchased or took possession of it … The plaintiff also complicated the issue by not returning the Excavator when he became aware of its various deficiencies … The simplest course that likely would have avoided, expense, stress, and this legal proceeding would have been to return the Excavator to the defendant and ask for a refund. He did not do so. I note that I find the plaintiff’s claim, to keep the Excavator and have his purchase payment to the defendant returned, and his cost of borrowing refunded, ill-founded.

“Despite these criticisms of the plaintiff’s conduct, I am satisfied that, at its core, the defendant misrepresented the quality of the Excavator to such a degree that he is liable to the plaintiff. Sellers should not be able to deceive or mislead in advertising without consequence. While buyers must exercise restraint and due diligence when purchasing items, I find in the circumstances of this case, the defendant failed to deliver the product in the quality expected by the plaintiff to such an extent that he is required to put the plaintiff in the position he would have been if the contract for a working and operational excavator was fulfilled.”