Contracts are optional.

[Sunrise Guy]

I NEVER work without a signed proposal. I have successfully sued three people. My contracts are great because I've been writing them since I was 13 and in a busy rock band. Lawyers who have read my contracts always ask if I took/taught contract law.

I'm not positive that I got your story, but let me go over it and then----

OK, I got it. You discovered the pipe and it made building the wall, to spec, impossible. The HO opted to have you build it anyway.

You should have NEVER built the wall, after discovering the pipe that made building the wall, to spec, impossible. Even a release of liability clause would have played poorly in court since it would contain information, to the effect, that you knew the wall could not be built to spec yet you built it, anyway, at the client's insistence. You cannot use a client's ignorance of proper procedure to excuse your own acts, in court. It was your responsibility, as the wall building contractor, to do the job correctly and/or tell the contractee why this could not be done.

The thing to do was clean up your mess and leave, sadder but wiser: Any wall building project must include a thorough investigation of any and all sub-surface structures that may be impacted and/or interfere with the building of that wall. Whatever base the wall is going to have will, by necessity, interact with a certain depth of the underlying supporting soil/surface.

I feel bad that you got stung, but you now learned a valuable lesson, I'm sure, when it comes to giving in to a client's stupidity.

Another thing: You should have had a clause that made it clear that you would thoroughly inspect the sub-surface area before you ever did a thing to their property, to the extent that was possible. In addition, that clause should have contained an "unexpected discovery" provision wherein it detailed that if something was discovered during the excavation phase that made building the wall to spec impossible, you would restore the property to a condition that would make the homeowner's enjoyment and use of the property equal to the state it was in before excavation began, to the extent that was possible.

Disclaimer: I'm not a lawyer. The above is based on my "feel" for the law, and I'm pretty good, at that. I never lost a case when suing on a contract that I wrote.

 

[jefflovstrom]

I NEVER work without a signed proposal. I have successfully sued three people.

Great for you! I love it when the "Sunrise", You seem to type alot more than than the average tree guy!
I would think you would be too beat to go on that expedition. You do understand that I am messing with you, but, dang, you wrote alot!
Jeff ,(no letters left!)

 

[BC WetCoast]

Actually they are related by region. Indians are predominately Hindi and the Pakistanis are the people from India that were Muslim and driven out of the country by that great peace lover Ghandi. They are hard bargainers which is a cliche for they will screw anybody for a buck.

Not wanting to derail the thread too much, but to clarify this comment a bit.

The British Raj (Indian Empire) included today's India, Pakistan and Bangladesh. When Britain decided it was time to get out after WW2, Lord Louis Mountbatten (who was the Viceroy), was charged with defining the boundary between the predominantly Muslim Pakistan and Bangladesh and Hindi India. They weren't driven out by Ghandi.

India comprises several religions predominantly Hindu, Sikh (in the northern Kashmir region) and Buddhist. In our area, Sikhs are the major immigrant group (distinguishable by the men who wear a turban).

Yes, they are hard bargainers, hard workers and shrewd businesspeople. However, as far as immigrant people that I have difficulty dealing with, the Iranians are by far the hardest (most were loyal to the Shah and came as a result of the revolution).

 

[jefflovstrom]

Well, there ya go, so that is it.
Jeff

 

[NCTREE]

Not wanting to derail the thread too much, but to clarify this comment a bit.

The British Raj (Indian Empire) included today's India, Pakistan and Bangladesh. When Britain decided it was time to get out after WW2, Lord Louis Mountbatten (who was the Viceroy), was charged with defining the boundary between the predominantly Muslim Pakistan and Bangladesh and Hindi India. They weren't driven out by Ghandi.

India comprises several religions predominantly Hindu, Sikh (in the northern Kashmir region) and Buddhist. In our area, Sikhs are the major immigrant group (distinguishable by the men who wear a turban).

Yes, they are hard bargainers, hard workers and shrewd businesspeople. However, as far as immigrant people that I have difficulty dealing with, the Iranians are by far the hardest (most were loyal to the Shah and came as a result of the revolution).

Yeah and they run one hell of a mean Dunkin Donuts franchise.

"coffee and a donut someting else???"

 

[lxt]

Sunrise,

good post & I understand what you are saying...However, I did tell the home owner about the pro`s & Cons, they signed the work Authorization & agreed to the work! Here is the reason I didnt walk away:

this particular wall was only 2 coarses high & according to Versa Loks technical bulletin regarding "free standing walls" they state the wall can be built & set directly at grade!!

Now, the building codes only address walls higher than 48" & therefore any wall shorter than that requires no mandated build method.

there is nothing in versa Loks specs for walls under 3 coarses stating that it cant be built the way the home owners wanted it built. I was playing devils advocate throughout this whole situation.........

Honestly I dont think it would have mattered what I did, build it & get sued! walk away & dont build it & get sued! Ill have to see what the lawyer says!



LXT................

 

[imagineero]

Yes they paid & were happy!! they even told this to the judge!
I was not informed of the line & to remove it/move it was not an option cause the home owners couldnt afford to do that, as a matter of fact the home owners couldnt afford any of my suggested build methods which were right outta the mfg`s guidlines, they got in over their heads without the ability to take care of any unforeseen problems!!

I really feel for you,
But i have to play the devils advocate a bit here too. I do mainly building work with a little bit of tree on the side, and the area i live in has houses that are 70~100 years old mostly. The building code was vastly different back then, and a lot of the work i do is repairs and additions to these mystery boxes. Its mostly quoted, but my quotes have a lot of conditions added to them.

At the end of the day, clients are relying on our expertise as professionals, thats why they call us. I like to lay things out, and after having been bitten on the ass numerous times i like to think I've got a pretty good idea of what might happen. So my quote is an estimate for the job as I see it. But i also include a few estimates of worse case scenarios. Want your tile re-grouted? here's what it might cost if your sub floor is already rotten. Need your guttering replaced? it might blow out if the barge boards behind are rotten etc etc...

Not trying to scare people, just to give them a reasonable understanding and expectation of what the job might cost. People appreciate that kind of honesty, and i get a lot of repeat work based on it. people might not have the money sometimes, and if they dont and decide not to go ahead then they will probably come back to me later when they do have it.

Does it mean i miss out on jobs? yeah sometimes. but they are usually jobs that i shouldnt be doing anyway, like people who dont have the money to do the job properly. once i promise a job to an elderly person with no savings and limited income, if the job turns sour what choices do i have? do the job at a loss, or do a poor job. who's fault is that, the elderly persons? they had a quote from me that they thought covered the job...

Bear in mind that in most court cases it is assumed that the professional is the only person qualified to make a decision, not the HO. Ive seen this so many times doing floor sanding. No matter what you tell them or advice you give to them, at the end of the day you have to decide whether that job is quality or not, and worth doing or not. If you always do quality work, then you've got nothing to fear legally. Sounds to me like you felt bad about the job and did (what you knew to be) a substandard job because you backed yourself into a corner over the HO's lack of funding to cover what you knew to be the right building methods.

Shaun

 

[arbor pro]

I used to do landscaping full-time along with tree work - now, just tree work. I used to build a lot of Keystone, Versalok and Diamond block walls as well as timber and stone walls.

Wondering how a 2-course wall could take 3 days to build and how it could be that expensive to fix if it fell over? Versalok is only 6" block. Two courses would be 12" plus an optional 3" cap makes it 15" tall. Is there something I'm missing here? Even with a drainpipe running under a block or two, I don't see how a few blocks sinking or leaning could pull an entire wall over - Even if it was 4' or 6' tall. Parts of it might sag or lean but, if tied together properly, the whole wall wouldn't fall over unless water pressure built up behind it and pushed the whole thing over.

I've built some 15' walls before and had minor settling that I had to fix. Usually a 1-day repair to pull apart the sagging section and repair the base and re-install the block.

I'm just not understanding how such a simple wall ended up in litigation - did the drain pipe drain water behind the wall rather than under or through it? What am I not understanding here LXT?

 

[treemandan]

Ok, so this is not about a breach of contract. Its more about shoddy workmanship?
I am not sure how the wall fell, I am not sure what this pipe had to do with it and I am not sure of alot of things.
But I have to ask this:
Was there ever a time when you could have just fixed the fallen wall instead of going to court? I suspect that is why you were sued, because the wall fell over. Is that the complaint that was made to the court that started the legal proceding? Tell us what they accused you of and why they ruled in the favor of the plaintif. Also, I have to see this wall; got pics?

 

[treemandan]

I used to do landscaping full-time along with tree work - now, just tree work. I used to build a lot of Keystone, Versalok and Diamond block walls as well as timber and stone walls.

Wondering how a 2-course wall could take 3 days to build and how it could be that expensive to fix if it fell over? Versalok is only 6" block. Two courses would be 12" plus an optional 3" cap makes it 15" tall. Is there something I'm missing here? Even with a drainpipe running under a block or two, I don't see how a few blocks sinking or leaning could pull an entire wall over - Even if it was 4' or 6' tall. Parts of it might sag or lean but, if tied together properly, the whole wall wouldn't fall over unless water pressure built up behind it and pushed the whole thing over.

I've built some 15' walls before and had minor settling that I had to fix. Usually a 1-day repair to pull apart the sagging section and repair the base and re-install the block.

I'm just not understanding how such a simple wall ended up in litigation - did the drain pipe drain water behind the wall rather than under or through it? What am I not understanding here LXT?

Yes, I am thinking the same. I originally thought the lawsuit was brought on by a breach of contract but now it looks more like shoddy workmanship. If that is the case why wasn't the wall just fixed before the lawsuit was filed? I mean we all are entitled to blow it , we all are entitled for a chance to fix it before the mighty gavelof the magistrate bangs.

 

[BlackenedTimber]

I had a customer once in Sullivan county, NY, the Jewish alps. He was a Hacidic (sp?) Jew named Mayer. I don't judge and I'm not racist, but I could smell this one coming a mile away.

He wanted 8 trees (70+ ft pines next to his house) removed, chipped and hauled. I gave him a price. He then says that his sister (next door) needs some work, so I write that up. His brother (next door, other side) has some trees that need work too. I write it up. He asks if I can make him a package deal for all 3 properties. I write it up again. He signs.

We come out bright and early, and start knocking down big wood. Bro and Sis's jobs are done, and I am at the top of the last pine about to make my back cut to drop the top when he comes out of the house, hollering about this and that. I stop the saw, and we have an aerial conversation about how much would it be to take out this tree, that tree, and this other one over here, since your here already. I tell him, and we add it to the bill.

Its a Friday. It's about 7:30 in the evening. I want a shower, a beer, and a shot, not particularly in that order. My guys are all giving me that look like "when the the hell are we gonna get outta here, T?!?!" leaning up on the trucks, arms a few inches longer than they were that morning.

I knock on the door, signed quote in hand. I tell Mayer's wife, who either doesn't speak english, or refuses to acknowledge that I do, that I need to speak with Mayer. About 5 mins later, he come to the door. The screen door was all that separated me from his kitchen, and I could see him sitting at the table, doing nothing in particular, biding his time while I waited on the porch. Now I'm pissed...

Mayer, without looking at me, comes through the screen door, keys in hand, and rushes down the porch steps towards his GMC Yukon. I follow him, yelling something to the effect of "HEY, WHERE THE (expletive deleted) ARE YOU GOING?!?!" He stops at the door to his truck and tells me that it's Friday night, and he has to get to temple before the sun goes down. I tell him that's all well and good, pay me, and then you can go. With that, Mayer slams the door in my face, and peels out of the driveway.

Mrs. Mayer refuses to answer the door, even though I can see her through the screen door looking at me.

I wait until 9:45 that night.

I had my ten-wheeler (GMC Brigadier all wheel drive... god I miss that thing) parked across the road so that he couldn't get back into his own driveway. My F250 was parked in front of the GMC, just waiting.

Mayer rolls up, pissed off that he cant get into his own driveway. I tell him tough ####. PAY UP. "ok ok ok, calm down" he says... We walk up to the house, and he starts to peel off hundreds. So now I'm thinking, good at least I don't have to worry about his check bouncing. He hands me about half of the quote in cash, not including the additional work, which he signed off on. Things escalate quickly. He explains to me that the Hacidics (sp?) have a game they play called "handle" (pronounced Hahn-dahl) which is like a bargaining game. I tell him I'm done playing games, pay me or I'm gonna wrap the winch line around your house and drag it out into the street. He peels of 2 grand in hundreds and hands it to me, then tells me he will have to write a check for the rest.

I get the check.

I leave.

I wait 4 weeks for the check to clear, after bouncing in my acct 3 times.

After the check cleared, I returned to his property in the GMC and dumped a load of chips in his driveway. I'm gonna say the pile was about 16 cubic yards.

Moral of the story: Contracts don't mean anything to anyone if the customer is an a-hole.

And don't piss of ol' T.

 

[lxt]

I offered to fix the wall "return it to its originally agreed upon state" the home owner would not permit us to do such!

the 4" pipe would not allow us to properly ditch the wall according to the Mfg`s specs!! the work manship was far from shoddy....the fact that the home owners had hit the wall during the installation process numerous times & admitted so to the judge leads me to beleive & after inspecting the wall collapse that........one of the home owners hit the wall, but try to prove that!!

I saw my Atty & he told me the minute the home owner stated they could not afford to have obstructions moved or provide additional build materials I was basically screwed! you either do the job as they want it done & hope it holds or make the area as safe as possible....however they may still be entitled to punitive damages due to the damge the property suffered during construction & the fact they bought materials with intentions that you were to install such...either way a no win!!

so now I file appeal & see what happens from there!!



LXT..................

 

[RVALUE]

I had a customer once in Sullivan county, NY, the Jewish alps. He was a Hacidic (sp?) Jew named Mayer. I don't judge and I'm not racist, but I could smell this one coming a mile away.

He wanted 8 trees (70+ ft pines next to his house) removed, chipped and hauled. I gave him a price. He then says that his sister (next door) needs some work, so I write that up. His brother (next door, other side) has some trees that need work too. I write it up. He asks if I can make him a package deal for all 3 properties. I write it up again. He signs.

We come out bright and early, and start knocking down big wood. Bro and Sis's jobs are done, and I am at the top of the last pine about to make my back cut to drop the top when he comes out of the house, hollering about this and that. I stop the saw, and we have an aerial conversation about how much would it be to take out this tree, that tree, and this other one over here, since your here already. I tell him, and we add it to the bill.

Its a Friday. It's about 7:30 in the evening. I want a shower, a beer, and a shot, not particularly in that order. My guys are all giving me that look like "when the the hell are we gonna get outta here, T?!?!" leaning up on the trucks, arms a few inches longer than they were that morning.

I knock on the door, signed quote in hand. I tell Mayer's wife, who either doesn't speak english, or refuses to acknowledge that I do, that I need to speak with Mayer. About 5 mins later, he come to the door. The screen door was all that separated me from his kitchen, and I could see him sitting at the table, doing nothing in particular, biding his time while I waited on the porch. Now I'm pissed...

Mayer, without looking at me, comes through the screen door, keys in hand, and rushes down the porch steps towards his GMC Yukon. I follow him, yelling something to the effect of "HEY, WHERE THE (expletive deleted) ARE YOU GOING?!?!" He stops at the door to his truck and tells me that it's Friday night, and he has to get to temple before the sun goes down. I tell him that's all well and good, pay me, and then you can go. With that, Mayer slams the door in my face, and peels out of the driveway.

Mrs. Mayer refuses to answer the door, even though I can see her through the screen door looking at me.

I wait until 9:45 that night.

I had my ten-wheeler (GMC Brigadier all wheel drive... god I miss that thing) parked across the road so that he couldn't get back into his own driveway. My F250 was parked in front of the GMC, just waiting.

Mayer rolls up, pissed off that he cant get into his own driveway. I tell him tough ####. PAY UP. "ok ok ok, calm down" he says... We walk up to the house, and he starts to peel off hundreds. So now I'm thinking, good at least I don't have to worry about his check bouncing. He hands me about half of the quote in cash, not including the additional work, which he signed off on. Things escalate quickly. He explains to me that the Hacidics (sp?) have a game they play called "handle" (pronounced Hahn-dahl) which is like a bargaining game. I tell him I'm done playing games, pay me or I'm gonna wrap the winch line around your house and drag it out into the street. He peels of 2 grand in hundreds and hands it to me, then tells me he will have to write a check for the rest.

I get the check.

I leave.

I wait 4 weeks for the check to clear, after bouncing in my acct 3 times.

After the check cleared, I returned to his property in the GMC and dumped a load of chips in his driveway. I'm gonna say the pile was about 16 cubic yards.

Moral of the story: Contracts don't mean anything to anyone if the customer is an a-hole.

And don't piss of ol' T.

Great story. And with a happy ending. And a moral. And some savvy advice.

 

[treemandan]

I offered to fix the wall "return it to its originally agreed upon state" the home owner would not permit us to do such!

the 4" pipe would not allow us to properly ditch the wall according to the Mfg`s specs!! the work manship was far from shoddy....the fact that the home owners had hit the wall during the installation process numerous times & admitted so to the judge leads me to beleive & after inspecting the wall collapse that........one of the home owners hit the wall, but try to prove that!!

I saw my Atty & he told me the minute the home owner stated they could not afford to have obstructions moved or provide additional build materials I was basically screwed! you either do the job as they want it done & hope it holds or make the area as safe as possible....however they may still be entitled to punitive damages due to the damge the property suffered during construction & the fact they bought materials with intentions that you were to install such...either way a no win!!

so now I file appeal & see what happens from there!!



LXT..................

i don't know how you got screwed... but you shore did! I would think some " unforseen problem" clause in a contract could have helped you.
One thing I do is any and all digging ( no matter what) gets an 811 call. The townships are notified as well by this call.
I just can't believe you got the hammer for this. You have no pics of the damage to the wall?

 

[lxt]

I have pic`s...during the build from start to finish, the pics of the wall failure are grainy & when up loaded to computer get worse!

I asked how to prevent this from happening again, as the homeowners from the get go had no concern about repairing the wall or providing a remedy to prevent this from happening again.....all they requested was MONEY, first complaint was for $1700.00, then in a response of theirs after wards they wanted reimbursed to have the wall put back to its original state which is the state they requested the wall be built in the 1st place, then through the magistrate they ask & get $4500.00

Heck I only charged them $2200 to put it up!! their complaint to the magistrate had dates that were wrong, wrong dollar amounts & was full of un provable accusations........the judge didnt care!!

actually what the judges concern was: my work authorization was dated & signed by both parties the day before the job was finished & she couldnt understand why??

I told her it wasnt untill that point in time that I knew definatively what all work/build method/materials were going to be used due to the home owners constantly changing their minds.......she told me well then you write up a change order & I told her (respectfully) I didnt know that the law states I cant re-write a work auth. the plantiffs had no problem with it & signed it.

How many of us have agreed to trim a tree, write it up & then the homeowner decides to take it down.......if we agree to do so then the trim agreement is null & void & a new agreement is wrote up or if your biz does change orders/add ons then you write one up????? 6 half dozen or the other.

BTW....some one gave the wall dimensions in here that I read & I just wanted to correct them the block are 8" high & the caps are 4" high a 2 coarse wall with cap is 20" high. This means nothing really other than the fact that according to the MFG the wall can be built directly at grade as long as the walls height does not exceed 26"........this is basically where any contractor can get jammed!

there is nothing that says I cant build the wall as it was....SO...as contractors when you are 1/2 way into the job & the unforeseen arises you can only ask yourself "what does the law say", I consider this a valuable lesson as it is a gray area, yes we are professionals BUT.... we are also employees of the homeowner, they can hire, fire, add on & take away & as long as their requests are within what the law allows them to do...we willingly engage into an agreement & comply with their requests doing the best we can!! after all it is by their request we are there in the first place!!!

I was told that due to the fact I didnt reside in this magistrates area & blah, blah blah that it shouldnt matter....BUT, it does. the plaintiff was a constituent of the magistrates & many times the magistrate has prejudice in such matters.

Now how to stop this in the future??? apparently writing in disclaimers & what you dont cover & just plain out trying to hold yourself harmless in any event is not recognized due to the fact there are consumer laws & statutes that no contractual disclaimer can over ride untill the statute of limitations has expired. In PA with the new HIC Law..they`re gonna make examples of contractors!!! so if you live in PA & are a contractor....grab your ankles cause even if you`re right................your wrong!! Ill be having my contracts redone due to the new HIC law & what all it entails!

thanks guys/gals for the insight & responses...Ill keep ya up to snuff on whats happening but it`ll be awhile...upto a year or better on the appeal!




LXT..............

 

[Sunrise Guy]

What I wrote, previously, would have prevented the above. Take it for what it's worth. If it's worth nothing to you, then so be it, but it's correct, nonetheless.

Added: "the 4" pipe would not allow us to properly ditch the wall according to the Mfg`s specs!! " Your words, not mine. Again, an unexpected discovery provision, here the 4" pipe, would have given you an "out."

 

[jefflovstrom]

What I wrote, previously, would have prevented the above. Take it for what it's worth. If it's worth nothing to you, then so be it, but it's correct, nonetheless.

Added: "the 4" pipe would not allow us to properly ditch the wall according to the Mfg`s specs!! " Your words, not mine. Again, an unexpected discovery provision, here the 4" pipe, would have given you an "out."

Kinda weird! I thought this is a tree site and I don't care about your wall!
Jeff

 

[outofmytree]

Oh dear, I agree with Jeff, (is that still a cardinal sin?) this thread belongs in the Business forum.

LXT you walked into a bad situation and you should have walked out. Like Sunrise I can tell you that your ass is in a sling and barring a miracle you will lose on appeal too. The fact is, you should have known better than to proceed with a retaining wall next to a drain. No matter how you argue you are stuck with the knowledge, backed up by the agreement you and the HO signed, that you knew better but did it anyway. Sorry man, you are screwed.

This isnt about the morality of a deal. Whelching is whelching no matter your age, creed or colour. Its about the law providing protection for the HO where they come in to contact with a professional in any area. Bottom line, if it looks dodgy, don't do it. You will be spanked for it and spanked hard.

BT. I feel your pain. Legality aside, I have wanted to do that on a small number of occasions. We have a garbage company over here whose logo is "satisfaction guaranteed or double your rubbish back" ....... yeah........

 

[Toddppm]

You would have needed drainage behind the wall anyways, couldn't have tied into the existing and move it a few inches to behind the wall?

 

[BlueRidgeMark]

I NEVER work without a signed proposal. I have successfully sued three people. My contracts are great because I've been writing them since I was 13 and in a busy rock band. Lawyers who have read my contracts always ask if I took/taught contract law.

...



Disclaimer: I'm not a lawyer. The above is based on my "feel" for the law, and I'm pretty good, at that. I never lost a case when suing on a contract that I wrote.

Finally, the voice of reason.


Basic contract law. Simple stuff. Required knowledge for anybody in any kind of business, especially any service business. But if you'd rather drink a beer and play video games than take the time to actually read something and learn, don't cry when something like this happens as if it's someone else's fault.


There are tons of free info out there. It's your's for the searching.


http://www.altavista.com/web/results?fr=altavista&itag=ody&q=basic+contractor+law&kgs=1&kls=1

http://www.altavista.com/web/results?fr=altavista&itag=ody&q=basic+contract+law&kgs=1&kls=1

http://www.altavista.com/web/results?fr=altavista&itag=ody&q=contract+law+tutorial&kgs=1&kls=1

http://www.altavista.com/web/results?q=contractor+liability+basic+law