Q: hello.on 11/20/2020 my husband contracted with a company to install chair lift in our home. at the time measurements
were taken and a 2k deposit given. the owner told my husband that the parts would not be at their warehouse until end of jan or first couple weeks in feb. my husband subsequently became deceased on 12/10 .i phoned and advised the owner of my husband's death and that i wished to cancel his order. the owner refused. a mechanics lean was placed on my property preventing refinance. i did not receive 2k deposit back or the stairlift and no work was done. at filing, the owner also added an additional 1k . if i allow the owner to be paid this 9k from refi escrow so i can close escrow, is there any likelihood that i could recoup the money by taking the owner to court. i also did not sign the contract for the stairlift
A:
Chairlift Cancellation: We always first start with analyzing the contract language, and so in this instance would be interested in examining any sort of "cancellation" provisions. If none, then we would need to look to case law, and the focus is on "impossibility to perform" (which is a defense to having to go through with the requirements of the contract). Lastly, an argument can be made that a contractor is only entitled to "quantum merit", which means the reasonable value of the materials and services which were ACTUALLY INSTALLED. Here, there was no installation, and so the contractor would be explained that they can only receive the value of their time (measuring, meetings perhaps) but not the value of the materials, UNLESS they can convince a court that your stairlift was so unique that they cannot re-use the materials at another location then they may be able to argue that the materials they ordered for your residence are now "of no value for any other installation at any other job site". I recommend you engage counsel to send a "legal letterhead" to the contractor inviting discussion of a settlement resolution closer to the $2k rather than the $9k.
JIM GREER is an attorney licensed to practice in CA and CO and has specialized in real estate and construction matters for the past 35 years; nothing herein shall be construed as the offering of legal advice insofar as Mr. Greer is not in an attorney-client capacity with the inquiring party. 858.481.9006
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