Consumer Law, Warranties Breach of oral contract for service

[LStatton]

My boyfriend made an oral agreement to build a set for a dance company. In a brief meeting, the leader of the group she said she could pay him $16/hour and asked him to estimate how long it would take him to build, and he estimated that it would take him 2 or 3 weeks to build.

The set is now built, and has been used for 1 of the 4 shows that will be performed. We gave the leader a written log of the hours that had been spent building the set, and asked her to estimate when she would be able to pay the money owed to him and sign the document. He worked 111 hours at $16/hour = $1776. She told him that she had a real problem with the amount of hours and that this is way too much, but unfortunately they had put nothing in writing before the work began.

In my opinion, it is not an unusual assumption that 1 week = 40 hours. So 2 or 3 weeks would mean between 80 and 120 hours. And he worked 111 hours. Technically speaking, this is in line with his estimate.

He does not have possession of the set, it is stored at the venue where the shows are being held. Set-up and tear-down of the set is extremely labor intensive, and would be extremely difficult to do without him.

Does he have any "leg to stand on" in this situation?

 

[Michael Wechsler]

My boyfriend made an oral agreement to build a set for a dance company. In a brief meeting, the leader of the group she said she could pay him $16/hour and asked him to estimate how long it would take him to build, and he estimated that it would take him 2 or 3 weeks to build.

The set is now built, and has been used for 1 of the 4 shows that will be performed. We gave the leader a written log of the hours that had been spent building the set, and asked her to estimate when she would be able to pay the money owed to him and sign the document. He worked 111 hours at $16/hour = $1776. She told him that she had a real problem with the amount of hours and that this is way too much, but unfortunately they had put nothing in writing before the work began.

In my opinion, it is not an unusual assumption that 1 week = 40 hours. So 2 or 3 weeks would mean between 80 and 120 hours. And he worked 111 hours. Technically speaking, this is in line with his estimate.

He does not have possession of the set, it is stored at the venue where the shows are being held. Set-up and tear-down of the set is extremely labor intensive, and would be extremely difficult to do without him.

Does he have any "leg to stand on" in this situation?

If the company uses the set knowing how much it cost, then in essence they have accepted the deal and cannot back out of it. If I were him I would take pictures of the set as well to ensure that if he has to go to small claims court then he has pictures of the final product as well. As you now know, you should always put these contracts in writing. But let's see about the essentials:

1) A promise by your boyfriend to complete the set, which he did.
2) A promise to pay for the set at the rate of $16 per hour which could take 2-3 weeks, to be finalized when your boyfriend submits the actual hours.
3) "Consideration" was exchanged as money in return for the labor and product.

We have all the elements of a valid and binding oral contract. The "statute of frauds" is an issue that normally we might have to contend with but that is not the case here from my understanding and application. Thus if need be, you could take them to small claims -- but that wouldn't be my approach. I would carefully explain it just as you did, that it did take 2-3 weeks. Your boyfriend may want to agree to settle with them and say that this IS the actual work and then ask them what they thought was reasonable. Get them to talk and explain why they think it is "too much" since the math works. Chances are they just didn't think this through. Assuming all you are talking about is a few dollars, it's worth it to settle. But with this amount of money, we shouldn't be talking more than $100-200 difference in dispute at most. Hopefully you'll strike a deal and it's over but in theory your boyfriend should be able to win a claim, although one never knows in small claims court and I haven't seen the logs, etc.

Let us know how things turn out and good luck!

 

[LStatton]

Thanks for the reply!

The situation went from bad to worse. After further discussions with the leader of the company, the problem was stemming from their recollections of the initial conversation, which happened over 2 months prior to the beginning of their show. She claims that Dan said he could be done with the set in a week. Dan says he would never have made that estimate. However, since they didn't put anything in writing, neither one had any proof.

I advised him that he should suggest that they compromise on the hours at 80. So he sent her a very simple contract that I put together, showing that she would pay him for 80 hours at $16/hour, and listing the out of pocket expenses for which she would reimburse him. Also included was that she would pay him a Good Faith payment of 25% of the final amount due on the day of the last show, and that she could set the dates & amounts of the installments for paying the balance. She said that was all fine & signed the contract.

On the last night of the show, however, she did not pay the 25%. He asked her about it, but she said she would have to call him over the next few days & let him know when he could expect it. She did not contact him again for almost a week, during which he left messages for her once or twice every day. So at that point I sent her an email myself, saying (among other things) that she signed the contract, but wasn't living up to her end of it, and if we didn't hear from her by the end of the week, we would be forced to begin proceedings in small claims court.

She responded almost immediately and very defensively to my email. She claimed she had been in the hospital for days and couldn't contact anyone, had never received any messages from Dan, and said that Dan should have asked her for the 25% on the last night (which he did, to no avail) and that it wasn't her fault that he didn't bring it up. She also said I should stay out of it, that I should quit making threats when I didn't know the situation, and that if Dan wanted money, he should contact her himself (which he did on numerous occasions, to no avail).

I responded back again to her, saying (among other things) that if she wanted to deal only with Dan, she needed to quit being unresponsive to him. I was sorry she was ill, but it was far from the first time she stopped returning phone calls from him when it was time for her to live up to her obligations (such as signing contracts, repaying money from checks she had written to purchase materials which she bounced to Dan/me). In the absence of any word from her, Dan had no reason to think this period of non-communication was different from any of the previous ones he had experienced. If she continues to ignore her obligations to Dan, then she would continue to hear from me.

She told Dan to meet her that night, which he did, and she paid him $600 (the final total is just under $1800). She gave him dates on which she would pay installments on the balance, and says she will mail the checks to him. At this point, he is waiting for the first of these checks to come in the mail (supposedly sometime this week).

If no other checks are forthcoming, what is your suggestion? Start going around & around playing "he said, she said" again with this thoroughly unpleasant, confrontational and untruthful person? Or simply start with small claims court, now that we have her signature on our simple contract, as well as numerous emails? The amount that she still owes him is just shy of $1200. He also has pictures of the set while it is actually in use by the dancers during several of the shows.

I'm sorry for the length of this post -- but the nightmare is ongoing and boggles my mind with each successive twist & turn!

 

[LStatton]

No checks mailed

It is now the end of the month and no checks have been received. She should have paid 2 installments as of now per her notes on the signed contract, stating she would pay installments every 10 days. First she told Dan that she had no checks & therefore couldn't pay (which is, of course, ludicrous). When Dan told her that cash would be fine and even preferable, she said she didn't have any money to pay her dancers or anyone else, and that hopefully in a few weeks she'll be able to start making the installment payments. And by the way, boo hoo, that she hasn't been able to pay her own rent.

Do we really have to sit & wait for her to scrounge up money & pay whenever she feels like it, and who only knows how long that would take?!?! Or should we start proceedings in small claims? The amount she owes Dan is just under $1200.