Sue for specific performance in breach of contract

[zackm]

What is the name of your state? Rhode Island


1. May 2019: I visited a cemetary memorial maker, discussed the size and design of it and was quoted a price of around $12K.


2. Aug 2019: After months of back and forth, I signed off on the fabrication of the memorial. The signoff was on the design plan, with notes on what was to be revised.


3. No deposit was given, none was asked.


4. Mar 2020: I am contacted by a different salesman telling me an error was made by my salesman, in that the cost of the stone itself was not included in the price, so an additional $16K was to be charged. I was told our salesman was fired becaue of several orders he mishandled.


5. Mar 2020: I was also told by the new salesman that a contract was emailed to me back in Nov 2019 but they do not have a copy of it with my signature. I had NEVER received the contract, asked that it be sent again and it was, the new salesman being unaware that I had not initially received it. That contract is included herein.(contract removed by moderator)


6. Mar 2020: I visit the company to see the memorial. We both see errors and agree to proceed with a first correction.

7. Apr 2020: I visit the company to see the result of the first correction. it is acceptable. We discuss how to move forward from here. We agree generally to a revissed price of $15K, inclusive of tax, and to signoff on additional corrections.

8. May 2020: A proposed new contract is sent to me, I reply with these suggested clarifications: to include time is of the essence, to include an estimated date of delivery, to include acceptance of the final lettering.

9. May 2020: I get a reply after a few days, surprisingly advising me that the company cannot agree to move forward so their newly proposed is void.


It appears that the company will not move forward with me. They are willing to keep the memorial and sell it at a higher price to a new client, with the necessary corrections of course (cutting the surface to remove my design).


I feel I have an argument for having a valid contract in that:

10. We had a meeting of the minds on the price and the product.

11. We have the company's representative signing the contract.

12. We have the product being produced.


I feel I have an argument for breach of contract by the company in that:

13. The contract states that the company will "furnish" and "erect" the memorial at the cemetary with the general specifications noted; they have not.


I feel I have an argument to sue for specific performance of the ORIGINAL contract in that:

14. The product can be considered unique in that it is a memorial with a unique design.

15. Financial compensation would not afford me the benefit of my bargain, as the material is Westerly Granite, only available in very limited supply and mainly, if not solely, by this company. I cannot purchase it elsewhere and probably not for the original contract price.



Any thoughts appreciated.

 

[Just Blue]

Contract review is beyond the scope of this forum...you will need to have it reviewed by a Attorney. Due to the personal information in your opening post I reported the posting.

 

[zackm]

I was unaware of the contract review limitation of this forum.

Which personal information should I edit to repost this question acceptably?

 

[quincy]

It did not sound like there was a meeting of the minds as changes were still being made.

Only the contract itself needs to be removed.

 

[Just Blue]

I was unaware of the contract review limitation of this forum.

Which personal information should I edit to repost this question acceptably?

Remove the contract or black out ALL names.
FA provides general advice but not specific as you would need for contract review.

 

[zackm]

Aug 2019: The approval of the lettering was noted on a form drafted by the salesman/draftsman and sent to the actual fabricator. There was a clear agrement between the salesman and me. The error was made during fabrication.

Mar 2020: During that visit, the company ACKNOWLEDGED the correct layout was understood between the salesman and me and ACKNOWLEDGED that the errors were made during fabrication due to an incorrect document from their salesman to the fabricator.

The changes you note were attempts after Mar 2020 to salvage the product. These were to shave off the face so the correct lettering coudl be reapplied. No changes were to be made, just keep true to the original approval.

 

[quincy]

Aug 2019: The approval of the lettering was noted on a form drafted by the salesman/draftsman and sent to the actual fabricator. There was a clear agrement between the salesman and me. The error was made during fabrication.

Mar 2020: During that visit, the company ACKNOWLEDGED the correct layout was understood between the salesman and me and ACKNOWLEDGED that the errors were made during fabrication due to an incorrect document from their salesman to the fabricator.

The changes you note were attempts after Mar 2020 to salvage the product. These were to shave off the face so the correct lettering coudl be reapplied. No changes were to be made, just keep true to the original approval.

Thank you for the clarification.

If I remember your original post correctly (and the moderator will edit the contract from your post and return the rest), there was a back and forth on price, wasn’t there (original quote in May 2019 was for $12,000, then changed to $15,000 but still under discussion)?

You have, to date, put no deposit down on the stone. Is this right?

I can comment more on specific performance once I can re-read your first post.

 

[zackm]

I thought I had to delete the contract. I have edited it and await its approval.

The original contract price was around $12K. The product was produced.

Upon seeing the error, the company told me they underquoted the job, they were about to lose money on the deal and they may just keep the stone as it's worth more to them.

I could not afford to start fresh with a different dealer, especially since the stone material is unique. So, I agreed to $15K for them to continue with the stone at hand but to correct the errors.

We were about to agree to that when they pulled out of the proposal.

No deposit was made nor asked for. The contract says NOTHING about a deposit, only that I am to pay when the job is completed. I was told that this was another mistake by their salesman, not accepting a deposit as it was standard practice. FYI, I was told the salesman was not new to this work, as he had been with them for a few years. Frankly, I saw no need to offer a deposit if I was not required to.

My goal now I suppose it to sway them to go forward with the revised contract at $15K. I would hope to sway them by "advising" them that I have a case for specific performance on the ORIGINAL contract. The would force them to make an entirely new memorial and abandon this one. that is because the original contract called for an 8-inch thich stone. Since they had to shave off the face, it is now 7.25-inches - less than what I bargained for. It's only acecptable since I cannot afford to start fresh with another supplier and lose more time.

 

[quincy]

I thought I had to delete the contract. I have edited it and await its approval.

The original contract price was around $12K. The product was produced.

Upon seeing the error, the company told me they underquoted the job, they were about to lose money on the deal and they may just keep the stone as it's worth more to them.

I could not afford to start fresh with a different dealer, especially since the stone material is unique. So, I agreed to $15K for them to continue with the stone at hand but to correct the errors.

We were about to agree to that when they pulled out of the proposal.

No deposit was made nor asked for. The contract says NOTHING about a deposit, only that I am to pay when the job is completed. I was told that this was another mistake by their salesman, not accepting a deposit as it was standard practice. FYI, I was told the salesman was not new to this work, as he had been with them for a few years. Frankly, I saw no need to offer a deposit if I was not required to.

My goal now I suppose it to sway them to go forward with the revised contract at $15K. I would hope to sway them by "advising" them that I have a case for specific performance on the ORIGINAL contract. The would force them to make an entirely new memorial and abandon this one. that is because the original contract called for an 8-inch thich stone. Since they had to shave off the face, it is now 7.25-inches - less than what I bargained for. It's only acecptable since I cannot afford to start fresh with another supplier and lose more time.

Thank you for again helping me understand what you originally wrote.

Based on what you have now written, specific performance potentially could be a valid remedy if your original contract for $12,000 was agreed to and signed by both you and the company, and no other agreement was made and committed to in writing by you and the company.

You should have the contract and the facts, including the subsequent discussions you had with the company about a cost increase, with an attorney in Rhode Island.

Edit to add: Your original post is now visible and it appears your original agreement was modified but not in writing. Trying to enforce the original agreement could be difficult. Again, you will want all facts personally reviewed by an attorney in your area.

 

[FlyingRon]

Note that even if the contract were to be held valid, it's not clear that specific performance would be the remedy. Rhode Island case law pretty much states "specific performance is not a right." Usually, courts are disinclined to grant it unless there's no other equitable remedy.

 

[quincy]

Note that even if the contract were to be held valid, it's not clear that specific performance would be the remedy. Rhode Island case law pretty much states "specific performance is not a right." Usually, courts are disinclined to grant it unless there's no other equitable remedy.

Specific performance is generally not the preferred remedy but it can be appropriate when money damages are not adequate in compensating the party seeking relief and/or when one party to an agreement unjustifiably refuses or fails to perform as agreed.

Because the memorial stone is unique (as is real property), a court could find that specific performance is an equitable remedy.

That said, I am still not convinced there was a solid agreement in place. A personal review of the written contract seems necessary.

 

[zackm]

Yes, I realize specific performance is not preferred. The only potential money damages I see are if I were to find another source for the same stone and pay more for the job. I would think I'd be entitled to the difference in cost. But this is not likely due to the uniqueness of the stone.

At any rate, I've attached the original contract again, without any names. It seems pretty clear to me that it is NOT a well-formed contract for the company. No mention of deposits, although that could have been written in by the salesman; it was not.

As for the "solid agreement", again, during our follow up meeting with the memorial in view, the company ADMITTED that it was not made to specification because their salesman sent an incomplete and erroneous specification to the fabricator. I have documentation where the salesman notes the correct specification on our end and knew what I wanted. I believe the salesman was overwhelmed with the work load and simply forgot to edit the final specification before sending it out to the fabricator.

As for our $15K modified agreement, that is no longer valid as the company has stated we cannot come to an understanding and they are keeping the product. That puts us back to the original contract. Of course, I would agree to the original contract terms as a mitigation: I am paying the agreed upon price BUT am getting an inferior product (since the stone is now thinner than the original specification). I would think a judge would find that fair.

I'm afraid the bottom line is that I cannot afford to wait for a decision in litigation. I may be forced to find an alternative material and have it made elsewhere. My fear is that if the Covid-19 situation worsens, my new memorial would be in an incomplete stage for an undetermined length of time. The only reason to stay with this company, if possible, is because they have the memorial in hand and can get back to work on it quicker.

Finally, to which court would I take this? Can I consider arbitration/mediation?

 

[quincy]

Yes, I realize specific performance is not preferred. The only potential money damages I see are if I were to find another source for the same stone and pay more for the job. I would think I'd be entitled to the difference in cost. But this is not likely due to the uniqueness of the stone.

At any rate, I've attached the original contract again, without any names. It seems pretty clear to me that it is NOT a well-formed contract for the company. No mention of deposits, although that could have been written in by the salesman; it was not.

As for the "solid agreement", again, during our follow up meeting with the memorial in view, the company ADMITTED that it was not made to specification because their salesman sent an incomplete and erroneous specification to the fabricator. I have documentation where the salesman notes the correct specification on our end and knew what I wanted. I believe the salesman was overwhelmed with the work load and simply forgot to edit the final specification before sending it out to the fabricator.

As for our $15K modified agreement, that is no longer valid as the company has stated we cannot come to an understanding and they are keeping the product. That puts us back to the original contract. Of course, I would agree to the original contract terms as a mitigation: I am paying the agreed upon price BUT am getting an inferior product (since the stone is now thinner than the original specification). I would think a judge would find that fair.

I'm afraid the bottom line is that I cannot afford to wait for a decision in litigation. I may be forced to find an alternative material and have it made elsewhere. My fear is that if the Covid-19 situation worsens, my new memorial would be in an incomplete stage for an undetermined length of time. The only reason to stay with this company, if possible, is because they have the memorial in hand and can get back to work on it quicker.

Finally, to which court would I take this? Can I consider arbitration/mediation?

The case would be heard in Superior Court. You can try to resolve the matter outside court.

Thank you for adding the contract with all personal information redacted. We cannot analyze contracts on this forum - for that you will need an attorney licensed to practice in your own jurisdiction - but the contract could be held enforceable. I notice the date of the contract is November 2019 and you didn’t sign it.

Good luck.

 

[Zigner]

This is not going to be a do-it yourself project. You are going to want to speak to a local attorney.

 

[PayrollHRGuy]

I'm with Quincy on the whole, not a valid contract. Not only is the copy you have not signed by you there is the home office approval requirement.