For more background surrounding the question below, read the first post in another thread “Drain Problem, can I be fined for this.”
The HO has seen she’s dealing with a shady, and greedy excavator to do her sewer hookup conversion from septic to public sewer. She was misinformed early on that the township selected 3 contractors to pick from to do her hookup. She selected this Ahole excavator (see the other thread). She signed a contract with him a few months ago. With how he’s treated me, and with learning recently that she CAN use whomever she wants (she would’ve chosen us but thought she had to use township selected contractors) she’d like to geyt out of the contract and hire us to do the work.
This contractor says he absoultely WILL NOT hook up the undergroiund 2″ drain to his 4″ lateral line because he stil swears it’ll be an illegal connection, which the township assures it is not. So, can she cancel based on the idea that he’s A) an Ahole who seems money hungry and may charge her morea nd she doesn’t want to take the risk and B) that he’s already admitting he will not do the work properly to begin with. Can she cancel in any way?
Replies
usually response, talk tom a lawyer
ok
widwow who has been lied to by someone to get a contract
hmmm, TV stations love it, AG's love it
don't know Pa's state consumer affairs or licensing people handle things, but sounds like someone has a basis for a complaint
bobl Volo, non valeo
Baloney detecter WFR
I had a dispute with UPS once. They absolutely wouldn't get their people to stop doing it So wrote a leter to CEO said that next time my first call would be to News media & TV. CEO had the problem corrected next day.
He hasn't 'Performed' yet.
She hasn't given him any 'Consideration'.
She can cancel just because she wants to.
She should send Sewer Mouth a letter stating the contract is canceled.
SM will immediately visit here and start his despicable tactics on her.
What are you going to do about that?
Consider going with her to get a Restraining Order on SM to protect this elderly widow from a proven lying manipulator. Ask your friendly BI to meet you at the court.
Use the RO as the cancelation notice.
(|:0)
Once you sign a document that sets out the material terms of the arrangement, i.e. cost, scope, etc. you have entered into a contract. A valid contract must be supported by "consideration", but consideration is defined as
what is given in exchange for the benefit obtained under a contract. It is often defined as a legal detriment. It is the price paid for the promise.
It is a bargained for change in position. It is what each party gives up to the other. It can be an act, forbearance or detriment.
Usually, consideration is giving money, services, delivery of goods, etc. However, giving up a right is also consideration. In an exchange of promises, each promise is consideration for the other. <!----><!---->The contractor is question has promised to do certain work and the homeowner has agreed to pay. It sounds like a valid contract and if the homeowner uses someone else to do the work, she has breached and will be liable for damages.
On the other hand, if she is able to show that she was fraudulently induced to sign the contract, she may be able to rescind it.
That's all well and good but what's her next step?
If having a low wage work force was good for a country's economy then why hasn't Mexico built a fence?
If she tells the contractor/POS that she has changed her mind, he may sue/threaten. That's what happens when you sign a contract and later decide for whatever reason not to go through with it.
If the contractor lied/defrauded her, she should get a lawyer to write the contractor/POs a letter to that effect.
No, she should let him do the job and document his incompetence, refuse to pay and sue for damages.
<G>
If having a low wage work force was good for a country's economy then why hasn't Mexico built a fence?
around here when it comes to city tie ins on sewer. the health dept, plumbing divison has the balls, they dont play. just make a call to city "I dont think that right....." the city will pull their business license that hour. they dont move equpiment or anything till city happy. Health dept is god.
Edited 7/25/2006 10:43 pm by brownbagg
>>No, she should let him do the job and document his incompetence, refuse to pay and sue for damages.
With all "due" respect, that is probably the worst advice I've ever seen posted anywhere.
Now you see why I kept it very terse and just (mis)used a coupla 'flag' words.SamT
has she given him a down-payment?
just call the city
Don't know, trying to find that out now.If at first you don't succeed, try using a hammer next time...everything needs some extra persuasion from time to time. -ME
http://www.attorneygeneral.gov/consumers.aspx?id=255Investigate fraud and deception in the sale, servicing and furnishing of goods and products, and strive to eliminate such illegal actions;
bobl Volo, non valeo
Baloney detecter WFR
Read my update in this thread. You're gonna love this.If at first you don't succeed, try using a hammer next time...everything needs some extra persuasion from time to time. -ME
BIG UPDATE!!!!!!!!!!
I went and visited the HO tonight and sat down for a face to face meeting. I asked to see her contract. She indicated she'd really like to get rid of this person and give us the job. I looked for an "out" in the contract. The contract is for $2900 to install 160' of lateral, pump/fill the tank and reseed the lawn. The contract says that if she cancels she owes the jerk 33% of the contract price as liquidated damages. We all know he'll hold her to that based on how he's been with me thus far. Seems clear his demeanor here.
Per my other thread, I spoke to two top dogs in the township and both of them said A) we never heard of this guys name before, we don't know of him, and B) we (the township) have never told residents that they HAD to select from 3 different contractors, we're allowing the HO to pick whomever they want as long as the work is inspected.
The HO has been told as of last April that they had to pick one of 3 contractors to do the hookup. This is in contradiction to what the township said. The Township said they can't understand why the HO felt this was the case. Well tonight I foiund out why she felt that way.
She showed me a letter from Glace, the inspection company who is CONTRACTED to the township to do the inspections. Glace is to coordinate and handle all the inspections from the sewer mains to the residential hookups. This letter was sent FROM Glace to every HO. In the letter it opens up by saying something like "Three different excavators have agreed to bid on each residential hookup, they are listed below. By using one of the three contractors you can take advantage of collective bidding practices and save money as a result......" The letter goes on to say that each of the 3 contractors will provide an estimate and include in their costs inspections, reseeding, and the like.
Now here is the kicker. In the letter there is a sentence that begins with the word "NO." The word "no" was capitalized and underlined. It was the only underlined word in the entire letter. The sentence pretty much stated, "NO further need exists for you to seek out contractors, the 3 below are listed in alphabetical order with their phone numbers....." This leads HOs to believe they have to select from those 3. By saying "NO" further need exists implies that Glace has done the work for them. No where in the letter does it say that the HO MAY seek out other contractors. It merely goes on to describe how the HO will save thru collective bidding.
Well if that ain't just a pot of BS. First of all the $2900 price is more than I would've charged for the same service. Our price would be in the order of arouind $1800 to $2000. We just did 10 sewer hookup proposals (elsewhere) and that was our average costs for similar jobs. So the collective bidding practices isn't saving anyone any money in my opinion. Further, the HO has a neighbor who happens to be the secretary at the township for the Sewer authority and her neighbor told the HO Sunday night that she did not have to pick from those 3 and that she chose someone altogether. The HO told the neighbor she was under the belief she couldn't do that. Duh, no wonder, if you read the letter ANY HO would conclude they're not permitted to shop around.
It soiunds to me that the 3 contractors may have something going on between them and Glace. Further Glace stated in their letter that the inspectoin fee would be $85. Well, if I could use my own inspector who is equally qualified he charges only $55. so I wonder if there is some "cahoots" going on here.
The HO now feels that Glace sent out these letters without informing the township, thus that explains why the township has no idea who this guy is, and why they couldn't figure out where people got the idea they could select from only 3. Basically Glace did this behind the Towhships back, tricking the HO into thinking they had no right to shop around. I told the HO she has grouinds to cancel the contract based on the fact she was fed intentionally misleading information. If at first you don't succeed, try using a hammer next time...everything needs some extra persuasion from time to time. -ME
Will Glace still be contracted to inspect after tomorrow?
Or the next city council meeting?
Joe H
Yes. New PA law states that each township shall contract with an inspection agency to perform inspections. Each township then puts out bids to various inspection companies. In this case Glace won the bid for this township. I don't remember for how long each contract is for, I think it's for either 2 or 3yrs.
Interestingly enough....Glace is the inspection firm I am REQUIRED to use by another township where I have about 10 sewer hookups I'm doing over the next few months. If at first you don't succeed, try using a hammer next time...everything needs some extra persuasion from time to time. -ME
If you're looking for a legal way, or a foolproof way, to rescind the contract with a guarantee that the guy's not going to sue, you're SOL. But that doesn't mean she has to bite the bullet.
Think practical rather than legal. The liquidated damages clause likely won't fly. If the work hasn't been scheduled yet, then the guys suffered no damages. As for the fraudulent inducement, it doesn't sound like she's got anything there at all.
Sometimes the answer is to go straight to the heart of the matter. Like sending a letter that he's been uncooperative, offensive and impossible to work with and she will not have him perform work on her property and if he pursues this any further, she will complain about him to the authorities.
If she gets a threatening response, so what? But she runs the risk of getting sued, which is the risk she takes for rescinding. If she's not willing to run that risk, then she's stuck.
SHGFor every complex problem, there is a solution that is clear, simple, and wrong.
-H.L. Mencken
would it hurt, be helpful, to get the State AG's consumer advocate involved?the link I made in one of these two threads reads to me that they might be interested in the apparently misleading representation. by the inspecting company, and the contractor himself.
bobl Volo, non valeo
Baloney detecter WFR
never hurts for an HO to get any governmental watchdog types involved. Would you want them on your butt?
Oddly, it's not that easy to get them to take an interest, but if she can do it, it will certainly help.
SHGFor every complex problem, there is a solution that is clear, simple, and wrong.
-H.L. Mencken
wonder if there is a TV consumer advocate reporter in the area.nothing like a an ol' widow getting screwed by a contractor story
bobl Volo, non valeo
Baloney detecter WFR
Good advice. When a contract is breached, there almost always will be actual damages. Generally, when no work has been started or materials purchased, damages will be limited to the profit that would have been earned, and perhaps something allocated to general overhead as well. For a small job like this one, the homeowner is unlikely to be sued because the contractor's damages are probably only a few hundred dollars, unless he can show that he turned down work in anticipation of doing this job and that he can't find a substitute, such that he's paying employees but they don't have any work.
"damages will be limited to the profit that would have been earned, and perhaps something allocated to general overhead as well."?? which means he will have to lay out his costs, overhead profit etc when he sues this li'l ol' widow ??
bobl Volo, non valeo
Baloney detecter WFR
I believe that the aggrieved party also has an obligation to attempt to mediate the damage, ie look for other work.
"to attempt to mediate the damage,"and there probably is a list of people who he has lined up to do work for.
bobl Volo, non valeo
Baloney detecter WFR
I believe that the aggrieved party also has an obligation to attempt to mediate the damage, ie look for other work.
that's mitigation of damages.
Absolutely. That anesthesia is still affecting my brain.
mediation, mitigation. tomato, potato. de minimus non curat lex.
SHGFor every complex problem, there is a solution that is clear, simple, and wrong.
-H.L. Mencken
>>Generally, when no work has been started or materials purchased, damages will be limited to the profit that would have been earned,
Better check with my good friend Hadley v. Baxendale.
Stop arguing just because you can. The case is worth $1,000 plus or minus if she tells him to walk.
It's going to wind up in front of a small claims hearing officer, maybe not even a judge. Want to go all the way - see if she can demand a jury. (In NY you can.)
Forget the legal brief. With these facts, she's not likely to get hurt. Given the right person on the bench, the contractor will look like a horse's butt. What is he going to say?
Don K.
EJG Homes Renovations - New Construction - Rentals
stop telling our secret. one more time and you're out of the club.
>>Stop arguing just because you can. The case is worth $1,000 plus or minus if she tells him to walk.
May I suggest you stop arguing if you don't know what you're talking about.
Someone suggested the possible damamges would be lost profits. One of the most basic of damages rules comes from an old English case, Hadley v Baxendale, which set forth principle that lost profits are not a measure of damages.
I think I have a pretty good idea of what I am talking about. I don't know how much time you spent in courtrooms when you practiced, but I was in court on pretty much a daily basis for about 8 years, and largely thereafter for another 13. The bulk of my practice for most of that time was representing architects and engineers in construction casses. Some of the cases were multi million dollars and lots of them were "run of the mill".
My point was that to start talking about Hadley in a case of this size, in this setting is going to fly like a horse. If you want to go to an esoteric law school argument level, fine, but it doesn't do anything for the poster.
Don K.
EJG Homes Renovations - New Construction - Rentals
I wasn't talking to the original poster - he got plenty of advice, some good - some bad.
I spent little time in the courtroom, but, as I practiced business law I had to be aware of such issues as applicable remedies.
"Further Glace stated in their letter that the inspectoin fee would be $85. Well, if I could use my own inspector who is equally qualified he charges only $55. so I wonder if there is some "cahoots" going on here."my experience is at the federal level.if we went out for a low bid award, and got 3 bids, you went with the lowest bid, assuming it was in the ballpark.It doesn't mean it can't be done cheaper, just that you went with the lowest bid of the bidders.
bobl Volo, non valeo
Baloney detecter WFR
Let's see: 33% of 2900 is $957. If you can do the work for her at $1800 to $2000 then the worst case scenario is that she is out $57 more than she would have been if she went with the original guy. So, even if she ends up paying the compensatory damages in full, she would be paying only $57 more to have an honest hardworking contractor instead of Mr. Shady Character. Seems like a no-brainer to me.
Everybody's talking like this sewer mouth is miraculously gonna clean up and follow procedures if he gets rejected.
Fugitaboutit. The worst he will do is come back and browbeat the widow.
If a lawyer sends the rejection, he won't show anything but his tail.SamT
Might be worth your time to see if Potty Mouth has a valid license.
"When asked if you can do something, tell'em "Why certainly I can", then get busy and find a way to do it." T. Roosevelt
if grace was awarded the inspection for the city, they are representing the city. also representing the contractor because of favor of work. sue the city.
" I told the HO she has grouinds to cancel the contract based on the fact she was fed intentionally misleading information."You are right but be careful about giving legal advice. Find another way of wording things
Welcome to the Taunton University of Knowledge FHB Campus at Breaktime. where ... Excellence is its own reward!
You are right but be careful about giving legal advice. Find another way of wording things
Point well taken. If at first you don't succeed, try using a hammer next time...everything needs some extra persuasion from time to time. -ME
I'm not a lawyer, but the phrase mis-representation of the facts comes to mind
Welcome to the
Taunton University of Knowledge FHB Campus at Breaktime.
where ...
Excellence is its own reward!
You say: "that he's already admitting he will not do the work properly to begin with"
This represents a breech of contract and is grounds for cancelation, but these things can get detailed and tedious. Look for statements in the contract or consequent statements which represent a contract breech. There is a true proverb that says "one man's story sounds good until you hear the other side."
Wille: How is the chocolate factory doing? I hope it does not have anything to do with sewer work.
The total fees here are chump change when it comes to going to court with a lawyer. If the contractor she's signed on with hasn't started yet, why not have her go to a local lawyer referral service (contract law) and run the situation past them before she goes any further with the jerk. If he attempts legal action, it's going to be in small claims. The question then becomes, does this clown have enough to stand on to win or better yet, is it worth his time and effort to take time out to appear in court and recover the small amount of damage, if he suffers any damage at all. He might even be wasting his time all together if he should lose in court, then he not only sacrifices time and lost work but he loses his case too. He may decide that his certain loss of time and money by going to court is not worth trading for potential gain should he just carry on his business with other contracts. His case may not be a guaranteed win and the lawyer referral service will be able to quickly determine the merits of the case without going to court at all. Referral is cheap , $50 for 20 to 30 minutes time.
The HO sent a Cert letter to Mr. A-hole saying they do not have the funds at present to do the work and need time to gather them. They asked him to not purchase parts or materials for the job yet because they don't know if they can come up with the funds in time. They further said in the letter that they are also aware that he may not do the job correctly and that this has caused them some concern that was confirmed by the township. They further said to not call them, they'll call him later once they've had time to research what they can do. He should get the said letter Friday or Saturday, depending on his availability to sign for the document. Tjhey're expecting him to contact them in spite of their request he not do so.
If at first you don't succeed, try using a hammer next time...everything needs some extra persuasion from time to time. -ME
This seems like a very strange resolution to this issue. I hope you are not advising her on how to proceed. Does she actually not have the money, or is she just saying that hoping he will lose interest? He sounds like the kind of dickhead who will go after $900 for cancelling. She should be talking to whoever handles contractor's licensing in your area, or to an attorney. The best thing you can do is stay out of it, or at least that's the feeling I get from reading your posts.
I advised her based on some responses here and based on the fact that the woman needs some time to set up a time with an atty to find out what she can do. Other than that I've been removed from it. I told her she needed time to sort this out and that the best way would be to send a cert letter saying she's having trouble with the funds now....for the only reason so she can buy some time with this guy before he shows up at her front door with a hoe and pipe and so she can consult with an atty.If at first you don't succeed, try using a hammer next time...everything needs some extra persuasion from time to time. -ME
76509.48 in reply to 76509.47
This is why you want to avoid the court system! They'll eat up all your money.
Doug
my thinking is that from a legal position she has diluted her eventual argument if it ever goes to court, by being wishy-washy and bring in the "I don't know if I have the money for this now" thing
Welcome to the Taunton University of Knowledge FHB Campus at Breaktime. where ... Excellence is its own reward!
yup. whatever she does later, it will appear that it's because she doesn't have the money, not because of the contractor. The best argument she can make later is that she's a liar. It wouldn't have been my strategy.
Dad tried to teach me to play pool. I'm still lousey at that - bad hand-eye co-ordination - but one leson stuck with me 'cause he must hav said it a few hundred times, "Always consider your next shot. Leavethe
Q ball set up for it"That lesson applies to a ;lot of things in life
Welcome to the Taunton University of Knowledge FHB Campus at Breaktime. where ... Excellence is its own reward!
I'm still lousey at that - bad hand-eye co-ordination -
that's what I always look for in a guy using power tools. ;-)
sorry, couldn't resist.
LOL
I'm fine as long as you don't throw it to me and yell, CATCH
Welcome to the Taunton University of Knowledge FHB Campus at Breaktime. where ... Excellence is its own reward!
Oh, great! The other contractor is an A-hole, but you're much better because you're advising the customer to lie to the other guy...so you can profit.
Suppose the other guy finds this out and goes to the State Licensing Board . They would have grounds to pull your license for it (assuming you have a license of some kind to begin with).
DG/Builder
Actually, to the contrary, I told her I could care less if she gave me the work, or someone else. I told her if she feels she wants us we'll do it, otherwise I said I'd be happy if she just picked someone else other than him to just get him back for being an A-hole.
Look the lady is an elderly lady who has a contractor down her back. She didn't know what to do. I merely advised her of what she could say (she asked me, which is why this thread exists) to buy her some time til she could find someone to address the issue legally. If at first you don't succeed, try using a hammer next time...everything needs some extra persuasion from time to time. -ME
Actually, to the contrary, I told her I could care less if she gave me the work, or someone else. I told her if she feels she wants us we'll do it, otherwise I said I'd be happy if she just picked someone else other than him to just get him back for being an A-hole.
It gets better and better. First we have a profit motive, now we have a revenge motive as well. A true Good Samaritan.
Willie needs to get a life.
DG/Builder
to just get him back for being an A-hole. but all contractors are a holes. a con with a tractor
like the kind of dickhead who will go after $900 for cancelling.I would too, How do they know they will do a bad job.
You're saying you would try to collect that kind of money? How would you go about it, pester them yourself or hire an attorney? Eventually they will simply refuse to pay and stop taking your calls and you'll still have nothing except a bunch of aggravation. If the guy wanted some money in hand he should have gotten a deposit with the contract, if that's allowed. Since apparently he didn't it's a complete non-starter for him.
if you sign a contract to do a job for x amount of money. you have not started the work yet. Client cancel job due to unproven (fact ) that you did poor work. If there is no evidence and you have clear your schedule to do the job, you are entitled to full payment. Remember there is no evidence that you do a poor job. and the word contract
No argument here, but try to get your $900.
I'm with you.
someone signed a contract ... now has buyers remorse.
some guy rides into town talking about how he can do better cheaper.
if it's in the contract ... and $900 is the buy out ... I'd be looking for my buy out.
and lets remember ... I think it was a sewer question ... Willie was asking how to quick fix someones boiler or someting that he broke after he jumped in and worked on without knowing how to jump in and work on!
I bet this one is filled with "the other side of the story" ...
Jeff Buck Construction
Artistry In Carpentry
Pittsburgh Pa