Property not being returned complete

[Texas_78114]

Texas is the state.

My brother took two non-working bulldozers to a tractor mechanic that was a long time family friend.
Deal was he was to take the two non-working bulldozers and assemble them into one complete working bulldozer.
Mechanic began the job, and some money was paid for parts (two or three thousand dollars).

Mechanic died this spring (March 2012). Knowing the family, we gave them some space,
and then about two months later, inquired as to our property. His daughter had taken over the business,
and stated that she did not know if they would be able to complete the job, but would get back to us.
A few weeks pass, and then she stated they thought they would be able to complete the job, for us to
just give them some time.

One month ago, she called back and stated that they would not be able to complete the job, and for us
to come pick up our two non-working bulldozers. We arrive, and find two piles of parts. The old mechanic
had disassembled the tractors and had died in the middle of the job. We stated that we could not accept this,
that we could not just come pick up two piles of parts. They were offering no return of our money paid
previously for parts, or any type of compensation to make us whole. We stated we needed to check on
some things and would be back in touch with them.

They just called today and stated that we needed to come pick up our two piles of parts or they would
start charging us storage fee's. We told them that we could not accept the parts as is. We stated you
can't take your car to a mechanic and have him disassemble your car and then tell you he can't fix it,
and then give you back a basket of parts can you? She stated they could.

So what should be our next action? What legal action should we take?

Any advice would be greatly appreciated. We don't want to hurt these people, we have known
their family for 30 years. We just want to made whole. Give us our parts back assembled as we
brought them to you so we can take them somewhere else, or offer some other form of compensation.

Thanks in advance.

 

[justalayman]

So what should be our next action?

I would suggest retrieving your parts and then worry about the legalities. If you abandon your equipment, they will eventually, and maybe quite quickly, be able to dispose of them and charge you for storage on top of that.

We stated you
can't take your car to a mechanic and have him disassemble your car and then tell you he can't fix it,
and then give you back a basket of parts can you?

actually she is right. Whether the owner of the vehicle has some legal action or not is a different matter. You cannot make the garage do anything.

We just want to made whole.

fair enough

. Give us our parts back assembled as we
brought them to you so we can take them somewhere else, or offer some other form of compensation.

well, that isn't making you whole. In fact, they may have a claim against you for the costs involved to bring the work to the point it is.

 

[Mass_Shyster]

I would suggest retrieving your parts

Good advice

and then worry about the legalities.

Don't bother. The mechanic's duty to perform was discharged by his death. See http://www.lexisnexis.com/lawschool/study/outlines/html/contracts/contracts12.htm

If, after a contract is formed, circumstances arise which make a party's performance impossible or impracticable, his duty to render that performance is discharged.

Events that may make performance of the contract impossible include:

death or disability of a person indispensable to performance of the contract

 

[justalayman]

Good advice



Don't bother. The mechanic's duty to perform was discharged by his death. See http://www.lexisnexis.com/lawschool/study/outlines/html/contracts/contracts12.htm

but there is a problem:

His daughter had taken over the business

 

[sandyclaus]

but there is a problem:

Good catch.

Since the daughter took over the business, she also assumed responsibility for completing the contract (assuming that the business entered into the contract, and it wasn't entered into by the original mechanic as an individual).

 

[Mass_Shyster]

but there is a problem:

His daughter had taken over the business

But compare that to

Deal was he was to take the two non-working bulldozers and assemble them into one complete working bulldozer.

So, unless the contract was made with a business entity that still survives (Corp, LLC, other fictitious person), the daughter has no rights or obligations under the contracts entered in to by Dad.

 

[Texas_78114]

Good catch.

Since the daughter took over the business, she also assumed responsibility for completing the contract (assuming that the business entered into the contract, and it wasn't entered into by the original mechanic as an individual).

The business owner was the original mechanic. The business consisted of himself as the owner and 4 or 5 other mechanics.
He was doing the original work as these bulldozers were antiques (1940's era caterpillar D-6's that had previously been Seabee tractors).
The owner was in his late 70's and was one of the only people we knew who knew alot about these old machines. As stated before,
these were long time family friends, but his daughter is a real POS.

 

[justalayman]

But compare that to



So, unless the contract was made with a business entity that still survives (Corp, LLC, other fictitious person), the daughter has no rights or obligations under the contracts entered in to by Dad.

I knew you would come up with this as well.


Basically, to determine which applies, it will have to be determined whether there is a true business entity and if the contract was between that entity and the OP or the OP and the individual outside of the business entity.


but in any case, I would still suggest going and getting your equipment before it goes away.

 

[Mass_Shyster]

Basically, to determine which applies, it will have to be determined whether there is a true business entity and if the contract was between that entity and the OP or the OP and the individual outside of the business entity.

Agreed. So if business is a corporation, OP has a claim against the corporation for breach of contract (not against the daughter). If Dad was a sole proprietor, OP has no claim.

Assuming it is a corp, specific performance will not be granted, as the corp no longer has the ability to perform the desired work. OP must get the work completed elsewhere and sue corp for the excess.

but in any case, I would still suggest going and getting your equipment before it goes away.

No argument there. (But gimme some time, I'm sure I can come up with something)

 

[tranquility]

Just because the duty to complete the contract may be "discharged" does not mean we just accept the status quo. I'd say the estate (if no entity) has to come back to the status quo ante. While I'd pick up the parts, I would also say the OP has the right to two assembled but non-working bulldozers.

 

[justalayman]

Just because the duty to complete the contract may be "discharged" does not mean we just accept the status quo. I'd say the estate (if no entity) has to come back to the status quo ante. While I'd pick up the parts, I would also say the OP has the right to two assembled but non-working bulldozers.

I would argue it took labor costs to disassemble the equipment (and I have worked on heavy equipment and it takes a lot of work to do much of anything) and as such, OP owes for that labor. Since the job was to take two units, disassemble each as needed and reassemble the better parts into one unit, to me, it sounds like they got quite a way into the job already. The contract has been partially performed and as such, the garage is due partial payment./

If OP wants them assembled, that is additional labor and is a righteous charge should it be demanded the units be reassembled.

 

[Texas_78114]

OK, lets stir the pot some.

I called my brother to convey all the info that was given above, and gathered a little more info.

1. After the owner (original mechanic ) died, and my brother was first called to get our equipment,
the daughter (new owner) came out and convinced him to leave the equipment, and agreed that they
could complete the work for $1500 a week labor plus parts with an estimated two to three weeks to complete.
My brother opened a line of credit at a parts place for them to get parts, but they never ordered any parts.
No further work was done on the machines.

2. When I stated two non-working bulldozers, I was not entirely correct. One was driveable, and they drove it
off the 18 wheeler trailer. The second was completely not working. Now they both are disassembled into
about 1000 parts in two piles.

3. The business continues today under the same name it did prior to the original owners death.

4. She stated she wants him to remove all the property within one day (future date to be agreed upon).
My brother told her there is no way to do so as when he brought them over, one drove, and one rolled,
and now they are just piles of heavy metal that would require forklifts or front end loaders to even pick
up the pieces. For him to do it himself he would have to rent equipment to pick it up, and have it moved
between their property and ours, at even more expense.


So here are my brothers thoughts. Should he file suit against them and at the same time file some sort
of injunction or something that would prevent the equipment from being disposed of until the case is settled,
in effect, impounding it?

Or should he just pay whatever it cost to get his equipment back (even though it is a basket case) and basically
photographically document the removal before and after, and preserve it on his own property until disposition of the case?

Thanks for the input thus far.

 

[Texas_78114]

I would argue it took labor costs to disassemble the equipment (and I have worked on heavy equipment and it takes a lot of work to do much of anything) and as such, OP owes for that labor. Since the job was to take two units, disassemble each as needed and reassemble the better parts into one unit, to me, it sounds like they got quite a way into the job already. The contract has been partially performed and as such, the garage is due partial payment./

If OP wants them assembled, that is additional labor and is a righteous charge should it be demanded the units be reassembled.

Well, since we are going in this direction, she did say she wanted to be paid for 5 days (one week or $1500) for disassembly. However, we were
told previously by the original owner and mechanic that it only took 3 days. She has now stated that if we will just come get our
equipment off their property they will not ask for payment for disassembly.

 

[justalayman]

So here are my brothers thoughts. Should he file suit against them and at the same time file some sort
of injunction or something that would prevent the equipment from being disposed of until the case is settled,
in effect, impounding it?

sure but realize that she could countersue for storage fees and if she wins, she could be awarded those fees. (most likely only from somewhere around the current time until they are moved) Not trying to chill the action, just let you know what might happen. I have no idea what storage fees would be in such a situation.

Or should he just pay whatever it cost to get his equipment back (even though it is a basket case) and basically
photographically document the removal before and after, and preserve it on his own property until disposition of the case?

when it comes down to it, unless you believe she is going to finish the work, (and do you really want her to finish the work?) I would think it best to remove the equipment. You can try to toss that into the suit as well if you are seeking damages and not performance. Don't know if you would get it but you can try.

4. She stated she wants him to remove all the property within one day (future date to be agreed upon).

what kind of units are these? given the stated condition they are in, sure sounds unlikely and unreasonable.

Is this still an active business? Do they have any equipment on site that might be able to be used to load your machines? Do they have any trucks or such to haul heavy equipment? Maybe you can work something out using her equipment to move your stuff, even if you have to pay one of the guys to be included in the deal and maybe fuel or something.

 

[Texas_78114]

what kind of units are these? given the stated condition they are in, sure sounds unlikely and unreasonable.

Caterpillar D6 bulldozers that weigh approx 18 tons each.