Sue for specific performance in breach of contract

[quincy]

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.

The only way I see it as an enforceable contract is that the stone was made to the specifications agreed upon by the memorial salesman and zackm. It appears they both understood what was expected originally as to stone, price and lettering, and the memorial company acted on this understanding.

 

[zackm]

1. I know this is not a do it yourself job. I simply want to get some information in case I'm proceeding officially.

2. The home office approval is ambiguous. There is no area on the contract for this approval to be noted. The only location where the contract asks for the company signature is where it is already signed. Why wouldn't that signature NOT be the "main office" rep's signature? I believe this ambiguity should be held against the company, the drafter of the contract. Furthermore, I believe this requirement is superceded by the fact that the order was processed and the stone was sent out to be fabricated.

3. I was told in Mar 2020 that the company had issues with the salesman, no record of any deposit and no record of a signed contract which was emailed to me in Nov 2019, according to the salesman's notes. I never received that emailed contract (shown above). I keep all my emails, checked all accounts and for spam; it is simply not there. I believe the salesman erred by not emailing me that contract. I suspect he thought we were good to go since I had signed off on the specifications document. The impetus for this error was that the stone had to go to VT in Nov 2019 to get inline for fabrication before the winter. I suspect the salesman rushed to get that out, with the erroneous specification, and simply never emailed me the contract.


Finally, although my signature is not on a contract, as noted in my original post, I believe we had a meeting of the minds on the scope of the job and the job was "completed", albeit incorrectly. If there was no meeting of the minds, why would the company send a $12K order out for fabrication?

Thanks for your ongoing consideration. I appreciate the feedback.

 

[quincy]

1. I know this is not a do it yourself job. I simply want to get some information in case I'm proceeding officially.

2. The home office approval is ambiguous. There is no area on the contract for this approval to be noted. The only location where the contract asks for the company signature is where it is already signed. Why wouldn't that signature NOT be the "main office" rep's signature? I believe this ambiguity should be held against the company, the drafter of the contract. Furthermore, I believe this requirement is superceded by the fact that the order was processed and the stone was sent out to be fabricated.

3. I was told in Mar 2020 that the company had issues with the salesman, no record of any deposit and no record of a signed contract which was emailed to me in Nov 2019, according to the salesman's notes. I never received that emailed contract (shown above). I keep all my emails, checked all accounts and for spam; it is simply not there. I believe the salesman erred by not emailing me that contract. I suspect he thought we were good to go since I had signed off on the specifications document. The impetus for this error was that the stone had to go to VT in Nov 2019 to get inline for fabrication before the winter. I suspect the salesman rushed to get that out, with the erroneous specification, and simply never emailed me the contract.


Finally, although my signature is not on a contract, as noted in my original post, I believe we had a meeting of the minds on the scope of the job and the job was "completed", albeit incorrectly. If there was no meeting of the minds, why would the company send a $12K order out for fabrication?

Thanks for your ongoing consideration. I appreciate the feedback.

It is the final point you make that is the strongest one. The stone was ordered and fabricated.

Had there been no understood agreement between you and the company on the type of stone and specifications, the stone would not have been ordered with the specifications you wanted (or, at least, close to what you wanted).

A contract was evidenced by the written contract but solidified through the actions of the parties to the agreement.

I recommend you make an appointment with an attorney in your area for a personal review.

 

[Taxing Matters]

It is the final point you make that is the strongest one. The stone was ordered and fabricated.

Had there been no understood agreement between you and the company on the type of stone and specifications, the stone would not have been ordered with the specifications you wanted (or, at least, close to what you wanted).

The fact that it is a specially produced good and that production of the stone had already started takes it out of the requirement for a signed written contract under UCC § 2-201 precisely for that reason: if there was no agreement for the sale the company would not have started the manufacture of it. See Rhode Island's version of UCC § 2-201 at R.I. Gen. Laws § 6A-2-201.

I recommend you make an appointment with an attorney in your area for a personal review.

I agree. This situation is messy enough that it would be a good idea to consult with an attorney who litigates breach of contract cases for advice and assistance.

 

[quincy]

The fact that it is a specially produced good and that production of the stone had already started takes it out of the requirement for a signed written contract under UCC § 2-201 precisely for that reason: if there was no agreement for the sale the company would not have started the manufacture of it. See Rhode Island's version of UCC § 2-201 at R.I. Gen. Laws § 6A-2-201.



I agree. This situation is messy enough that it would be a good idea to consult with an attorney who litigates breach of contract cases for advice and assistance.

Thanks for providing the link to the appropriate section of Rhode Island’s commercial code.