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When A Contract Doesn't Seem To Matter...

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  • When A Contract Doesn't Seem To Matter...

    (QUICK EDIT FROM POSTER: I wrote a contract for this project that covered everything. Specified length of job, materials to be used, in the event of a homeowner caused delay, change orders, etc. Tiles supplied by client. Everything. Client fine tuned it to his liking and we signed it together.)

    Long story short. First time in 16 years I had to put my foot down and say No. Thanks for listening. Simply feeling badly about having to stand up for myself and my company. Shoot me down if I done wrong...

    21 day fixed price bathroom reno contract. Start it. Finish It. Get Out. That's the way they wanted it. Specs were the usual. Demo. Then rebuild with floor of 2 x 2 HomerDepot Porcelain mosaic sheets. Shower walls of 3 x 6 HD ceramic tiles. Beadboard. Some paint. You get the idea.

    Day 3 demo done, everything is spotless, substrates ready for tile.

    "Hold up! We've changed our mind on the tile. Returning what's on site, going shopping in four days for something new. Looks like you're going to have a hole in your schedule!"

    Thinking Thanks pal. It's not even spring yet and already I'm juggling outside projects to fill in this hole.

    A week later and only because they were tracked down does info get shared.

    "Picked a nice 1/2" x 1 1/2" marble basket weave on sheets. Should be here in a week or so."

    So write up a change order and detail the extra work honed marble versus porcelain. Seal it. Wet saw versus score and snap/nibble. And all 10,280 of those extra little 1 1/2" grout lines... Then buff it and seal it again.

    It's another grand. Basically two plus extra full days of sealing, setting and fussing.

    And that change order gets rejected out of the park like a New York Yankee tenth inning walk off homer.

    "Not paying an extra penny for anything. You're just gonna have to work harder and faster for your original money."

    But wait, there's more!

    "I've kept a time sheet on you. Looks like you made some pretty good money during the demo stage. In fact, I want a credit back."

    Ummm, I see ME on the time sheet. But where are my helpers and laborers? And the day I spent before we started work readying the site and protecting your house? And setting up debris chutes and waste staging areas? Oh, you didn't know about those things? Huh.

    Guys and Gals, as a pro I hate to put my foot down and keep it there. But with the assistance of my lawyer (yeah, THAT was free...) I detailed the significant extra work created by the client's change of materials (originals were line itemed in the contract) and refused to give away the extra days.

    Client told me to pack up and get off site.

    I did that and politely responded with "I'd really like to finish what I started. I'd be open to reviewing a new work proposal. Why don't you write it up the way YOU want it to be?"

    ​Bet I never hear back.
    Last edited by allsquare; 02-12-2017, 05:48 PM.

  • #2
    Yes, make sure you have a good contract and most of these issues will never come up, or if they do you don't suffer a loss. Changed your mind and need to pause the project? Sure, no problem. See section called "Delay by owner" for applicable charges. Etc.

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    • #3
      Yes dgbldr, good advice. Sadly, I DID have every aspect covered, including delays in work caused by client, changes of materials and their impact on going forward costs and etc. This person just didn't want to follow the contract or the stipulations contained therein. Thank you for your insight!

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      • #4
        I think we've had some threads years ago about these situations. I remember Dick talking about what happens in a breach of contract situation, liquidated damages, etc. My approach (with legal guidance) has been to have the contract structured so that as much as possible, the contract is not breached. You don't want to pay and you ask us to stop work and get out? Sure. There is a clause for what happens then. So when you go to sue, the contract is still in force or was concluded without a breach. Then you can sue under the terms of the contract rather than having to prove damages.

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        • #5
          I think that dgbldr is largely correct in his advice. I have a book called "Defensive Estimating" by William Asdal. The main theme of the book is to have clauses in your contracts that will protect you in case a dispute arises. Most of us have such clauses in our contracts; usually as a reaction to things that have already happened to us. However, there are many things that can arise which are hard to imagine in advance. This book spells many of those things out for us.
          Last edited by Zaker9; 02-15-2017, 10:51 AM.
          www.kylezach.com

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          • #6
            Thanks guys. Let it suffice that my contract listed all the materials, my specific responsibilities and the milestones and payment structure, as well as penalties for owner induced delays and changes. It was crafted with the help of our lawyer. This client is just operating by his own rules. Take this gem for example, "there is no difference between installing HomerDepot porcelain versus tile store honed marble." And as far as the week and a half being idle on this job so he could shop? "You're just gonna have to deal with it." Best that I'm on to the next project. I get the gut feeling that the last 2k would have been miserable to collect if this project had ever made it to completion.

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            • #7
              ... gut feeling that the last 2k would have been miserable to collect ...
              Good call.
              Put your energy toward positive productive work, instead of negative risky work.

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              • #8
                I'd follow up with a written letter stating the facts and that the owner has asked that the contract be terminated for whatever reason and that you agree with it and the contract is closed out/settled at whatever amount.

                My feeling is that you are still under contract to perform the work no matter how out of line the client is. This is just my gut feeling. I am not an attorney so take it as free advice from the internet.

                I'm not in the same line of work as you, I work for builders. Many. I have my fair share of war stories over the years. Its all part of weeding out the garbage and finding the good folks to work for. Those, you don't even need a contract to work for. For those people, I will come home early from vacation to help, I will stay late and fix their problems, bottom line I take care of them no mater what. Because it goes both ways.

                So if I come across a new client, which is rare right now because I automatically hate all new clients until given a reason to feel otherwise, I send them an unsigned contract. They sign it and send it back. I never sign it and don't send it back. 99% of the time they forget all about it.

                If I need to exercise that contract, I have their signature and I can add mine. If they ever try to screw me and I need to walk....they don't have a leg to stand on because they don't have a contract. If they are good, we become friends.

                Moral of the story is, if you get shafted once, shame on them, if you get shafted twice, you deserve the shaft.
                "First we finish the game, then we’ll deal with the Armada!"

                Sir Frances Drake

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                • #9
                  Originally posted by Ted S. View Post
                  My feeling is that you are still under contract...
                  Ted, you're spot on and you deserve all those gold bars, and an extra pound of bondo.

                  It is absolutely necessary to close out the contract, preferably without claiming a breach. If you don't, the client can sue you for breach and attempt to prove damages, which is not as hard as you may think.

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                  • #10
                    maybe somebody can explain breach of contract to me better than my common sense mind fathoms. As I read these posts I see a contract that is very specific, very detailed as to what you are doing and what you are not. You are not installing a different type of tile that the customer just changes his mind about. They keep a time sheet on you and want a credit back. It sounds like the customer is not going by the contract. A change order was given and rejected.

                    So if I am to complete the work do I install the tile I am supposed to as per the original contract then let some other guy come along and tear it out and install the new stuff? How do you stay doing the work if no contract is going to be followed by the client and why should I be staying to do the work? Is the guy going to pay me extra for the things that go wrong and eat up my time even tho the demo went well?

                    I have never had a contract or client go that far off on me. Partly because I am too much of a nice guy I suspect and hate to have issues with customers. Probably give away work and money that way. Have never walked away during a job. Just recently refused to work for a guy based on how he treated his wife, calling her a stupid b..... in front of me, telling her to shut up so I could explain things. This was just in the walk thru, cannot imagine how it might be if I had actually worked for him.

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                    • #11
                      Originally posted by m beezo View Post
                      maybe somebody can explain breach of contract to me better than my common sense mind fathoms....

                      How do you stay doing the work if no contract is going to be followed...
                      Beez, those are questions you need to review with your lawyer in structuring your contract and deciding in advance what you should do if such a situation arises. When you find yourself in a situation like this, it's better to be prepared.

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                      • #12
                        Thank you to everyone! I will do the letter thing suggested and it is clear that he terminated the contract in writing. I will reference that.

                        He got me from my local mailing. I'm sorry I gave him my trade discount and saved him +$1,400 on materials... Today he went to my supplier (who I had been keeping up to date on this project!) apparently talked poorly about me and put them in the awkward spot of having to provide some names for him to call. It is what it is. At least the guys at the counter had an interesting opinion to share with me when I stopped in later in the day!

                        Karma! A good client learned I was suddenly free. "Get back over here! I want another bathroom done!" Moving on!

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                        • #13
                          original poster said that a lawyer was involved in this situation. Not sure what that is accomplishing so far. Costing the contractor money and so far it does not sound like he has gotten anything back from the homeowner and probably won't.

                          I suspect that all is not over yet but I have to wonder if I am the only guy here who does not have a lawyer that they use. I have never been to one for construction stuff, not bragging just saying.

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                          • #14
                            I would suggest that you have your lawyer write the "breach of contract" letter.
                            www.kylezach.com

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                            • #15
                              Original poster here. Client wrote to me via email "I think it best that we terminate the agreement at this point." Two days later he had another contractor in there doing the work. I get the feeling that client kept shopping long after he signed contract with me. I just emailed back that I agree with his termination of the contract.

                              Lawyer cost me nothing so far. He spent about five minutes looking at it via email and gave me his feedback. Guess he's seen this sort of thing before.

                              Thank you for the feedback. Sometimes people just go off on their own regardless of how much ink you put on paper or what the contract says.

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