Contractor Replaced Due to Failure to Start a Job, Now Billing for Supplies

[ryank771]

My question involves a consumer law issue in the State of: Indiana

We agreed verbally with a contractor to have window work completed, but were not given any type of contract with terms/conditions on it. We didn't sign any type of paperwork. The contractor stated the windows would be in, and work completed in 2 weeks. 6 weeks went by with NO communication from him, so we hired a different contract to do the work. The next week, the original contractor contacted us stating the windows were in and that he's ready to install them. We advised him that due to his failure to communicate with us any type of delay, we already spent the money with another contractor. He is now demanding we pay for the cost of these windows. My question is, are we still liable for the cost of these windows?

I apologize if this is under the incorrect topic.

[Mr. Knowitall]

During the six weeks at issue, what effort did you make to contact the contractor, or to tell him that you were terminating his services based upon his failure to show up and perform the work?

(Have you seen this cartoon?)

[ryank771]

Nice cartoon -- I could have used that a few weeks back!

Approx. a week after the contractor gave us the two week deadline, we found out we were expecting, so things have been a bit hectic. So unfortunately we did not attempt to get an update from him. I think my wife and I assuming puts us in the wrong in that area. We didn't really think about it until around week 6 when we realized that we hadn't heard from him. I just feel that as customers, he should have provided us with an update or at least let us know that it would be longer than two weeks. But, legally he may not be required to do so.

[Mr. Knowitall]

If you don't contractually agree that time is of the essence, a court is apt to look for industry practices in evaluating what type of delay is reasonable or unreasonable, and that could include whether the factory from which the windows were ordered was responsible for part or all of the delay. I expect that these are custom windows, which would make them difficult to repurpose and likely impossible to return absent a significant defect, but if they are stock sizes it may be possible for the contractor to return them for a comparatively modest restocking fee.

[ryank771]

Thanks Knowitall.....I appreciate your help. He did tell us they were custom, but not until after we told him we couldn't pay for them since we went with someone else. He also stated that they couldn't be returned, which is why he's requesting that we pay for them. If he would have told us that in the beginning, I would find a way to get him the money as quickly as possible. But right now, I'm up in the air as to how to approach this. I don't believe he's going to want to go to court over $965 worth of windows. I don't, that's for sure!

[SChinFChin]

Thanks Knowitall.....I appreciate your help. He did tell us they were custom, but not until after we told him we couldn't pay for them since we went with someone else. He also stated that they couldn't be returned, which is why he's requesting that we pay for them. If he would have told us that in the beginning, I would find a way to get him the money as quickly as possible. But right now, I'm up in the air as to how to approach this. I don't believe he's going to want to go to court over $965 worth of windows. I don't, that's for sure!

I'm a LL of many years, rehabbed a number of houses, installed replacement windows on several of them. ALL such windows are custom made. This includes the size, color, and features, such as double hung, double insulated etc. Size-wise, the windows on every house is different, so even from that standpoint, it's custom and can't be installed elsewhere.

Putting it simply, there's no such thing as a "standard" window.

If I was a contractor, and it's too inconvenient to go to court to sue for $965, I would simply employ a collection agency, who'll collect on a contingency basis, or just buy the debt outright, and if you don't pay, they'll have attornies on retainer who'll sue you, or simply report it to a collection agency, and your credit will be trashed.

I was a credit manager for a number of years, and it is not unusual for us to place small claims for collections, together with bigger ones. We have relations with various collection attornies as well, and because these people often are in court anyway for other cases, just hanging around to do another is not a big deal. When I was credit manager, I had to accompany one attorney to court to give testimony on our claim, and the attorney just stayed behind in court because he had a few other cases in the same courhouse later that day, so the issue of "is it worth going to court .." is a not such a simple issue.

And as a further note, since all such windows are custom made, you cannot say you know nothing about it, or didn't give authorization because these window are ALL made to the exact size of every window in your house, and how would the contractor know all of this without coming by to take measurements. In fact, my dad ordered replacement windows for his house, the rep forgot his tape measure home, borrowed my dad's, and all the windows came up two inches too short because the rep forgot to add the two inches that is the width of the tape measure. Said he would've remembered it if it was his own measuring tape. We were told the all the windows had to be custom remade, the rep not only lost his commission, but had to make up part of the lost to his employer, and my dad also had to wait another few weeks. All the 18 or so windows had to be scrapped because the store won't be getting orders for other windows of exactly the same size, and it's just to costly to cut the ones made apart, and glue another one together with longer sides, and it's just undoable . What are are they going to do with glass that's two inches cut too short??

[Mr. Knowitall]

I can go across the street to a big box store and buy stock windows in a wide range of sizes. I certainly would not recommend trying to use a window that does not fit an opening, and replacement windows will almost always need to be custom sized in order to fit properly, but let's not pretend that stock windows don't exist. I have a builder in the family who loves mismeasured windows - he picks them up for a song and then uses them in new construction. You can't make a window fit an opening, but you can make an opening fit a window.

No collection agency is going to litigate a debt this small on contingency, and no factoring service is going to sue to enforce this debt after buying it. All the defendant has to do is present the defense of breach of contract and the contractor becomes a necessary witness - suddenly for a third party collector or debt owner it becomes an iffy case with legal fees that will far outstrip the entire value of the debt. This is the sort of debt claim that a factor would want reduced to a judgment before they would buy it, except perhaps for pennies on the dollar.

[SChinFChin]

I few years back, I had a business, and paid $100/month for some local interner Website to draw in customers for me. Did it for a year, got absolutely no customers, called and emailed them to cancel it. Took them three months, so they billed me for three more months, about $300 worth, I refused to pay, so they got a collection agency after me. Told me I'll be reported to D&B among other things.

I never paid them.

A year later, I was doing some consulting work for a customer handling their finances. This time, the same collection agency called about a debt for the same Website, this time for $1,000.00. I didn't handle the issue, someone at the company did, and I explained to them the Website is a scam, drew in absolutely no business for me. This also happened to be their experience. So the collection agency offered to settle the debt for 50% off, right off the bat for $500, but if the company refused, they would bring them to court, and report it to D&B. The company asked me what to do, and I told them I would tell them to fly a kite.

Depite this, the President of the company overruled us, decided to pay the $500, just to get the issue out of the way. I have to say if it was a personal debt, I would think twice about having the matter go to a collection agency. Citibank did it once for a $172.00 dispute with me over bank fees, and for 10 years after that, everytime I went in for a mortgage or a refi, they would ask me about the $172 fee dispute, and fortunately, I have the documentation, and had no problems.

Then, when I was in business, had a local "collection attorney" working for 35%. The way it works is I give him a claim, and he'll even do $1,000 or even less, he'll make the threatening phonecalls, and mail threatening letters, if he gets no results in 90 days, he'll return the claim to me and charge me nothing. And if he settles for part of it, gets my OK, then he keeps 35% of that. He does this and "auto repossessions", files mechanics liens etc., nothing major, but does a good business of it.

And the funniest situation I witnessed was I was sitting in my attorney's office, and he's trying to farm a claim out to another attorney. I heard the whole call as I was in a meeting with him. He explained that he took the case to send threatening letters for a percentage, but the debtor ignored him, so he instead is sending the claim to anything attorney who might do a bit more work and take the debtor to court.

What I am saying business is so bad now that there are bottom feeders going after even the small stuff.

[ryank771]

Thanks guys. I have decided to just contact an attorney anyways. The contractor sent threatening text messages (yes, this is how this guy communicates...text messages) that he's going to put a lien on our house tomorrow if we don't pay him.

The information you two have provided me is greatly appreciated. I thank you for taking the time to reply.

[Who'sThatGuy]

I'm really surprised that you found a contractor to take his own money from his pocket and order windows for your home. And he did this on a verbal contract. 99 times out of 100, a contractor would require a deposit to order any materials. Your contractor is financially stable and an honest person. I sure hope the contractor has learned a lesson from this.

But to answer your legal question, yes, you are 100% responsible for paying this man his out of pocket expenses. If you let this go as far as getting into a courtroom, you will most likely have to pay court, legal and filing fees too.