Breach of Service

[Stephen S]

HI,
I am the owner operator of A Handman business in Massachusetts. In order to enhance my proffesional image, I went to a local merchant to purchase 8 shirts with my company name embroided on them. I agreed to pay 226.oo and the shop owner gave me a two week delivery date. He told me a deposit would not be required which I thought odd. After 2 months the shirts were still not ready. I had ordered them before Thanksgiving and on a status call after Christmas, he told me he was too busy doing Christmas orders. I finally made one last call to get another promise and politely cancelled the order. It was apparent he did not care and then I quickly realized why he did not require a deposit, as it appears he took the order as an extra to him and never intended to give it any status. This was also proven as when I payed a visit at the 4 week mark, he asked me my size as he couldn't read his own handwritning. The shirts were special order so this meant he never even ordered the stock. I Had changed the text of the order twice, The first time,two weeks after the first promise and once after the six week period whereby, neither should have effected the delivery date and I would have accepted the order in any form. I am simply fed up with this type of service. I believe my business was harmed as I could not project the proffesioanl image I had intended to, to many new customers. I would like to sue him for breach to compensate myself and to honestly punish his arrogant service attitude. My questions are, Do I have a case worth spending the day in court for? Am I within the oral contract $ limit? Can I sue for triple for breach? and Can I sue for punitive to the limit of small claims in my state? Thank You in advance and if the triple applies, could you please tell me the proper wording and legal reference so I can fill out the small claims form correctly?
Thank You
Stephen

 

[I AM ALWAYS LIABLE]

HI,
I am the owner operator of A Handman business in Massachusetts. In order to enhance my proffesional image, I went to a local merchant to purchase 8 shirts with my company name embroided on them. I agreed to pay 226.oo and the shop owner gave me a two week delivery date. He told me a deposit would not be required which I thought odd. After 2 months the shirts were still not ready. I had ordered them before Thanksgiving and on a status call after Christmas, he told me he was too busy doing Christmas orders. I finally made one last call to get another promise and politely cancelled the order. It was apparent he did not care and then I quickly realized why he did not require a deposit, as it appears he took the order as an extra to him and never intended to give it any status. This was also proven as when I payed a visit at the 4 week mark, he asked me my size as he couldn't read his own handwritning. The shirts were special order so this meant he never even ordered the stock. I Had changed the text of the order twice, The first time,two weeks after the first promise and once after the six week period whereby, neither should have effected the delivery date and I would have accepted the order in any form. I am simply fed up with this type of service. I believe my business was harmed as I could not project the proffesioanl image I had intended to, to many new customers. I would like to sue him for breach to compensate myself and to honestly punish his arrogant service attitude. My questions are, Do I have a case worth spending the day in court for? Am I within the oral contract $ limit? Can I sue for triple for breach? and Can I sue for punitive to the limit of small claims in my state? Thank You in advance and if the triple applies, could you please tell me the proper wording and legal reference so I can fill out the small claims form correctly?
Thank You
Stephen

My response:

Sorry, but it's my opinion that you never had a contract.

You see, a contract has 3 basic elements: An offer, an acceptance, and consideration. In your case, you're missing the consideration; i.e., no money exchanged hands. If you had given him a deposit, then you would have had a contract. Also, there is the issue of damages. Assuming you could prove the existence of a contract, you would have a difficult, if not impossible, task of proving what, if any damages you suffered as a result of the breach of the contract. How would you prove an increase of business with the shirts, or decrease in business without the shirts ? It would be speculation on your part, at best. And judges don't deal in, nor will they accept, speculative beliefs about damages. Without damages, no award could be made to you - - and that's assuming you could prove a contractual relationship to begin with.

Second, beyond the contract issue, is your duty to "mitigate" damages. That means, you had a duty to yourself to stop all damages to yourself if it was within your power to do so. It was.

After the two week delivery date came and went, you had a duty to yourself to find another supplier. You failed to have another supplier make you the shirts, when you could have done so. Any amount of time after the first two weeks was your responsibility, not your original shirtmaker.

Sorry, but again, I think you'd lose in court. Find a new supplier.

IAAL

[Edited by I AM ALWAYS LIABLE on 01-20-2001 at 09:41 PM]

 

[Stephen S]

One last ??

Thank you Proffesor for the quick response. I figured the punitive was very thin but I figured I would throw it into the forum anyway.
I always presumed the contract was based on Offer and Acceptance though I thought it played out like this. He quoted a price for the shirts plus text work. I told him I would take the shirts at his quote which would be the offer and he gave me a delivery date which would be the acceptance. The consideration is the money though wouldn't it's time of passing just be a provision of the contract as would be my agreement to wait two weeks. Lastly could a reward be based solely on breach without actual damage.
Thank You again and I'll adhere to your final thoughts..
Stephen



[Edited by Stephen S on 01-20-2001 at 10:57 PM]

 

[I AM ALWAYS LIABLE]

Re: One last ??

Thank you Proffesor for the quick response. I figured the punitive was very thin but I figured I would throw it into the forum anyway.
I always presumed the contract was based on Offer and Acceptance though I thought it played out like this. He quoted a price for the shirts plus text work. I told him I would take the shirts at his quote which would be the offer and he gave me a delivery date which would be the acceptance. The consideration is the money though wouldn't it's time of passing just be a provision of the contract as would be my agreement to wait two weeks. Lastly could a reward be based solely on breach without actual damage.
Thank You again and I'll adhere to your final thoughts..
Stephen

My response:

Sorry Stephen. Still no change. There was no "consideration" for the contract. "Time" is not consideration. Consideration must be something of "value" and passing between the parties - e.g., money to one person, shirts to another. And, the fact remains, no money exchanged hands. Therefore, the contract fails.

You can't get damages, like I said, because there's no contract, and any damages would be speculative, at best. Courts don't award damages based on speculation.

Also, you failed to mitigate your damages, anyway. And courts do not look kindly upon those who allow damages to increase, when there was an opportunity to reduce such damages.

IAAL

[Edited by I AM ALWAYS LIABLE on 01-20-2001 at 11:53 PM]