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  1. #1
    phau is offline Junior Member
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    incomplete contract work

    What is the name of your state?What is the name of your state? CA

    We have a contract with Express Blinds to do 19 plantation shutters in Sep 2004 and paid half of the total price. 18 were installed in Nov and I paid most of the balance except $400 for the last window. They told me the last window will be coming in a couple of weeks. When I call them to see when the last window was coming in Dec, they told me they don't do that size window. They are the one who measure the windows. Now they are saying we are even. Can I force them to get another vendor to complete the job or pay me the difference for me to get another vendor to finish the job with comparable quality?
  2. #2
    divgradcurl is offline Senior Member
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    Can I force them to get another vendor to complete the job
    No.

    pay me the difference for me to get another vendor to finish the job with comparable quality?
    In principle, if they've breached your contract, and you have to go out and get someone else to finish the job, then they would be liable for the amount the other person charged, less what you would have paid them to do the work. So, if the cost for that last blind was $400, and you found someone else to do it for $500, then the original contractor would be liable to you for $100.

    But you'll have to take them to court to get it, in all likelihood. Hang on to all of your paperwork, get someone else to do the work, and then see if it's worth it to pursue.
  3. #3
    phau is offline Junior Member
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    Would this case be considered a breach of contract? There'a a term in the contract that states Seller shall be excused from non-availability of materials or other reason beyong sellers' reasonable control. But they should have known what they can do and cannot do when giving me the estimate and to tell us that it wasn't do-able after all other windows are done is just plain misleading and misrepresentation.

    I have ask for estimates to do that single window and they range from $1100 to $2000. Do I have to get the window fixed before taking them to small claims court or can I bring estimates?
  4. #4
    divgradcurl is offline Senior Member
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    Would this case be considered a breach of contract? There'a a term in the contract that states Seller shall be excused from non-availability of materials or other reason beyong sellers' reasonable control.
    If the vendor can prove that the reason they couldn't complete the work was due to a "non-availability of materials or other reason beyong sellers' reasonable control" then no, it wouldn't be a breach. But they'll have to prove that to the judge to be excused from the contract. And, even if they are excused from the contract, that doesn't mean they can "profit" from the excused contract -- if the last window costs more than $400, and all they gave you was $400, they would still be liable to pay you back for the entire value of the last window and labor to install it -- see my last paragraph in this response for more on this.

    But they should have known what they can do and cannot do when giving me the estimate and to tell us that it wasn't do-able after all other windows are done is just plain misleading and misrepresentation.
    Not necessarily. If they knew BEFORE they signed the contract they wouldn't be able to do it, then that would likely be misleading or misrepresentation. But if something came up after the contract was signed, well, that's why they have the clause in the contract.

    But in any event, even if they did misrepresent and you were able to prove it, your "damages" won't change -- there are generally no "punitive" damages in breach of contract cases, and certainly not without strong evidence of some willful conduct to defraud you, which, as you might expect, can be extremely hard to prove. So, eventhough you are mad, just forget about this angle.

    I have ask for estimates to do that single window and they range from $1100 to $2000. Do I have to get the window fixed before taking them to small claims court or can I bring estimates?
    I would first ask the vendor if they would be willing to eat the cost difference in order to avoid a suit. If a suit becomes necessary, the estimates should be sufficient, make sure you get a couple of them (three maybe) and that the quality of the windows is the same or nearly the same as that which you intially contracted for.

    One other point -- you said the unpaid balance was $400, but everyone else is saying that the last window is $1100 to $2000? Something doesn't sound right there. Do you have an itemized contract (cost broken down per window)? That sort of information would also be useful to have in a court case, but if you don't have it, you don't have it.
  5. #5
    phau is offline Junior Member
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    The itemized amount for that last window is $525.
    They are lower in price. That's the reason we pick them. I have lost considerable price negotiating leverage going to other vendors with only 1 window.
  6. #6
    divgradcurl is offline Senior Member
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    The itemized amount for that last window is $525.
    If that's the case, AND they can somehow prove to the court that they should be relieved of their contractual obligations, then they would at least owe you another $125.

    Gather up all of your paperwork and tell them you are going to take them to court unless you get satisfaction. If they balk, file a small claims actions against them. Good luck.
  7. #7
    phau is offline Junior Member
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    I would appreciate some input on the this follow-up. Finally Express blinds called me back after I put a dispute on the last payment and my credit card withdraw $3500 from their account. Express Blinds is demanding that I replay them back the $3500 or ($3500 - $125) and draw a new contract for the last window or they will have their lawyer put a lien on my property for not paying them. How likely is that? Is it unreasonable for me to insist on withholding $1100, the cost of the last window by another vendor, until they complete the job?
  8. #8
    divgradcurl is offline Senior Member
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    Finally Express blinds called me back after I put a dispute on the last payment and my credit card withdraw $3500 from their account. Express Blinds is demanding that I replay them back the $3500 or ($3500 - $125) and draw a new contract for the last window or they will have their lawyer put a lien on my property for not paying them. How likely is that?
    I would say pretty darn likely. By disputing the charges, now you essentially have the windows AND the money -- you don't get both, you have to pay for the windows.

    Now, I don't think they really have a leg to stand on as far as making you sign a new contract, but you do need to pay them for the work.

    Is it unreasonable for me to insist on withholding $1100, the cost of the last window by another vendor, until they complete the job?
    Yes, because at the present time, you are not entitled to that amount -- only a court can tell you if that is what you are entitled to. You are not allowed to perform "self-help" here -- the courts are the proper remedy in this case.

    You should pay them for the work, then sue then for the costs you are out due to their breach of contract -- like I noted earlier. Trying to help yourself here by withholding money isn't going to help you -- pay them what they are asking for, then let the courts decide how much they should give back to you.

    And besides, if you don't sue them, the most you could possibly withold from them would be the cost of the uninstalled window -- not the cost that it will cost someone else to install the window instead. In order to get reimbursed for that -- which you should -- you need to go to court.
  9. #9
    phau is offline Junior Member
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    This is becoming a nightmare. We were supposed to meet at my house Friday night. I have agree to pay them back (3500-125) and they were going to draw up an addendum to complete the last window but they did not show up again. No phone call, nothing. I'm getting tired of them making promises and not keeping them. I have filed a complaint with BBB last week. Should I still try to pay them back? How? We had pay them by credit card.
  10. #10
    divgradcurl is offline Senior Member
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    Should I still try to pay them back? How? We had pay them by credit card.
    At this point, just file suit in small claims court. Remove the dispute from the credit card -- that should make sure they get paid -- and then sue them for the cost of having someone else install the new window. Maybe the threat of a suit alone will get them moving. If not, well, a lawsuit is basically the only way you can force someone else to do something -- filing with the BBB or whatever isn't going to get them to install (or pay for installing) that last window of yours...
  11. #11
    phau is offline Junior Member
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    How do I know that they haven't put a lien on my property? Will the county or the person placing the lien require to notify me?

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