Has my plumber breached our contract?

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Latest post Fri, Mar 31 2017 11:37 AM by TR28. 30 replies.
  • Sun, Mar 26 2017 10:10 PM

    • TR28
      Consumer
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    Has my plumber breached our contract?

    I live with my mother in a single-family home in a suburb of Chicago, Illinois. We both own the house. We have a Joint Tenancy with Right of Survivorship.

    Recently, we signed a contract with a plumber for the replacement of our home's sewer pipe. The contract has three signtaures: my signature, my mother's signature, and the plumber's signature. 

    The following is the text of the contract:

     

    ------------

    Contractor is to supply all labor and material to complete the following:

    Contractor located several sewer separations and will replace sewer pipe from city property to inside residence and connect to a good section of pipe. Contractor will also install a 6” clean-out for easy rodding access. Contractor will make all appropriate connections to restore house to proper working order. Contractor will use material to be in compliance with city codes. Anything unforeseen will be an additional cost. Contractor is not responsible for any damage caused to floors, walls, or landscaping. 

    The price of the above procedure is $13250.00. A deposit of $4500 will be needed to start work, $4300 will be due half way through the job, and the remaining amount will be due after inspection. There will be a lifetime guarantee on all labor. 

    ------------

     

    We gave the plumber $4500. He and a subordinate plumber came to the home a few times and did some digging in our crawl space. 

    My mother took issue with the haphazard hours these plumbers were working. They were working only a few hours a day, and not every day. They seemed to be juggling us and other clients. 

    One day, my mother called the plumber in charge (whose signature is on the contract). My mother made this call without my approval. I was asleep when she made the call. She said to him that, if he was going to have these haphazard hours, then she didn't want him to come at all. He interpreted that statement to mean that she had fired him. So, he said that he was coming to the house to pick up his tools. 

    My mother woke me up and told me what had happened. I called him, and he said that he had been fired and that he was picking up his tools and leaving the project. I told him that *I* still wanted him on the job. Nevertheless, he came to the house, picked up his tools, and left the project. 

     

    I believe that he is in breach of contract. There is no provision in the contract that says that, if my mother and I disagree about firing him, then he can simply walk away from the contract. 

    Right now, the crawl space has been dug up to a huge extent, but that's only a fraction of the work that has to be done. The plumber has $4500 of our money. However, the work done by these plumbers, in my view, is worth far less than $4500. 

    I want to sue for breach of contract, for the amount of ($4500 - the value of the digging already done). Has the plumber in charge breached the contract? 

    Thanks for any information.

     

     

  • Mon, Mar 27 2017 7:18 AM In reply to

    • DOCAR
      Lawyer
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    Re: Has my plumber breached our contract?

    No.  Your mother may have breached the contract by firing him, if the grounds for firing him were not it the contract.  Unless the contract required both of you to agree on every decision, she had the power to fire him.  The contractor does have an obligation to return to you the money you  paid minus the work he has done and minus any damages he suffered by your mother breaching the contract by firing him.

  • Mon, Mar 27 2017 2:32 PM In reply to

    • TR28
      Consumer
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    Re: Has my plumber breached our contract?

    "Unless the contract required both of you to agree on every decision, she had the power to fire him."

     

    The contract does not explicitly state that my mother and I have to agree on every decision. However, if my mother breaches the contract by firing him, and I proceed to un-fire him, doesn't my un-firing him mean something? My signature is on the contract. Do I not have a voice at all?

     


  • Mon, Mar 27 2017 3:39 PM In reply to

    Re: Has my plumber breached our contract?

    TR28:
    I believe that he is in breach of contract. There is no provision in the contract that says that, if my mother and I disagree about firing him, then he can simply walk away from the contract.

    Of course there's no such provision.  Aside from the fact that your contract is woefully lacking in a lot of areas (if, in fact, you have quoted the entire contract), you obviously never contemplated a scenario in which one of you wanted to terminate and the other didn't.  In other words, there's no provision either way that says one of you can make decisions for both of you or, to the contrary, that all decisions or certain decisions require both of your approval.  Why doesn't the contract contain anything like that?  Likewise, why didn't you include something in the contract about "haphazard hours"?  I'm sure the answer is because you didn't think about it.  Keep in mind that just as you believe the contractor to be in breach, there is an equally good (and, in my opinion, better) argument to be made that your mother and you are in breach.

     

    TR28:
    the work done by these plumbers, in my view, is worth far less than $4500.

    What are your qualifications to assess this?

     

    TR28:
    I want to sue for breach of contract, for the amount of ($4500 - the value of the digging already done).

    That would not be an appropriate measure of damages if, in fact, the contractor breached.

     

    TR28:
    Has the plumber in charge breached the contract?

    I don't think so.  Your mother fired him (i.e., purported to terminate the contract).  You want to claim that because, after your mother fired him, you told him you didn't want him fired, that somehow negated what your mother did and means that the contractor abandoned the job.  There's no way that argument will fly.  I think the more likely result is that a court would deem that you and your mother were each other's agents and that her actions are imputed to you.  The measure of damages for the contractor would be the profit he would have earned had he been allowed to complete the work.  If you were to sue him, and if he came to me for advice, I would suggest that he countersue (if, of course, the math worked out right).

  • Mon, Mar 27 2017 3:42 PM In reply to

    Re: Has my plumber breached our contract?

    TR28:
    if my mother breaches the contract by firing him, and I proceed to un-fire him, doesn't my un-firing him mean something?

    No.  "Un-firing" is not a concept that has any legal meaning.

     

    TR28:
    Do I not have a voice at all?

    This gets back to the lack of a provision that says all decisions must be unanimous.

  • Mon, Mar 27 2017 4:10 PM In reply to

    • TR28
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    Re: Has my plumber breached our contract?

    "I don't think so.  Your mother fired him (i.e., purported to terminate the contract).  You want to claim that because, after your mother fired him, you told him you didn't want him fired, that somehow negated what your mother did and means that the contractor abandoned the job."

     

    Keep in mind that I called him *just minutes* after his conversation with my mother. I called him even before he had the chance to come to the house to pick up his tools. I did not wait days or weeks to call him.

     

    "I think the more likely result is that a court would deem that you and your mother were each other's agents and that her actions are imputed to you."

    I wanted the plumber to stay. Why wouldn't *my* actions be imputed to my mother? Imputing is a two-way street, is it not?


     


  • Mon, Mar 27 2017 4:14 PM In reply to

    • TR28
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    Re: Has my plumber breached our contract?

    "In other words, there's no provision either way that says one of you can make decisions for both of you or, to the contrary, that all decisions or certain decisions require both of your approval.  Why doesn't the contract contain anything like that?"

     

    Initially, my mother signed the contract. The plumber suggested/insisted that I sign the contract as well, and I did not know that he was going to make that suggestion. The contract was not changed to account for two clients, as opposed to one.

     

     

     

     

  • Mon, Mar 27 2017 5:36 PM In reply to

    • TR28
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    Re: Has my plumber breached our contract?

    "your contract is woefully lacking in a lot of areas"

     

    Can you please elaborate on how this contract is lacking? What should the contract include?


  • Mon, Mar 27 2017 8:03 PM In reply to

    Re: Has my plumber breached our contract?

    TR28:
    Can you please elaborate on how this contract is lacking? What should the contract include?

    A definitive start and finish date would have been good.  As to suing him for breach of contract, just ask for the balance unspent back and find someone else to do the job.  Once he was told he was fired, he is allowed to accept that and move on.  He doesn't have to accept your attempt to rehire him but he does have to refund any part of the deposit he hasn't used.

  • Tue, Mar 28 2017 5:54 AM In reply to

    Re: Has my plumber breached our contract?

    TR28:

    I wanted the plumber to stay. Why wouldn't *my* actions be imputed to my mother? Imputing is a two-way street, is it not?

    Yes, but your mother got there first, so once she fired him, he had a choice about whether to go back to work or not.  Possibly if your mother had also told him right away that she didn't mean it, he would be more on the hook, but it doesn't sound like she did.

    But beyond the legal details there is this practical reality:  this contractor sounds like he regrets taking your project on, and in a situation like that it's usually best to look for someone who actually wants to be there and do the work.

    In your shoes, I would do two things now:  one, get bids from a couple of other contractors to finish the job, along with their estimates of the worth of the work already done, and two, request a settling-up accounting from this guy.

     

  • Tue, Mar 28 2017 8:59 AM In reply to

    Re: Has my plumber breached our contract?

    TR28:
    Keep in mind that I called him *just minutes* after his conversation with my mother. I called him even before he had the chance to come to the house to pick up his tools. I did not wait days or weeks to call him.

    If that were relevant, I would have asked how much time elapsed between the two events.

     

    TR28:
    I wanted the plumber to stay. Why wouldn't *my* actions be imputed to my mother? Imputing is a two-way street, is it not?

    Of course.  The difference is that, once your mother terminated the contract, there was no more relationship between the parties, so your desire that he return to the job was meaningless.  In other words, once your mother did what she did, the contractor held all the cards.

  • Tue, Mar 28 2017 9:01 AM In reply to

    Re: Has my plumber breached our contract?

    TR28:
    Can you please elaborate on how this contract is lacking? What should the contract include?

    That would be way beyond the scope of an internet message board and is relatively easy to ascertain by googling.

  • Tue, Mar 28 2017 9:06 AM In reply to

    Re: Has my plumber breached our contract?

    TR28:
    Initially, my mother signed the contract. The plumber suggested/insisted that I sign the contract as well, and I did not know that he was going to make that suggestion. The contract was not changed to account for two clients, as opposed to one.

    None of this matters.  You could, of course, have insisted that the contract be modified to account for having two persons as the customer.

  • Tue, Mar 28 2017 10:48 AM In reply to

    • Drew
      Consumer
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    Re: Has my plumber breached our contract?

    Your beef is with mom...she unilaterally interfeered with the job  and prevented to plumber from doing the work ...the contract did not say time is of the essence or set an end date ..and on lots of smaller jobs the work might be intermittant ...you both will be darn lucky to not get sued by plumber.

    BTW is this plumber licensed in your town ?  



  • Tue, Mar 28 2017 11:04 AM In reply to

    • TR28
      Consumer
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    Re: Has my plumber breached our contract?

    "you both will be darn lucky to not get sued by plumber"

     

    What I'm getting from the other responses is the following:

    Since the plumber did not "fight" for the job by trying to talk my mother out of firing him, since the plumber did not try to appeal to me to talk to my mother about this, and since the plumber just came and picked up his tools, it can be said that the plumber "agreed" that he should not be working this project. In other words, my mother's actions and the plumber's actions, collectively, constitute a mutual dissolution of the contract.

     

    Also, the plumber did pay a fee to be registered to work in our town.

     

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