Legal Question in Legal Ethics in New York
I hired a landscaper to work on my backyard to remove all the flowers, weeds and plants.
Upon our verbal agreement we agreed to a price of 1085 for labor plus material. The landscaper also confirmed that he would guarantee his work for one year.
Initially I paid him $100 to start the work, $450 once he finished the work, after a few weeks I saw weeds coming in my backyard and advised the landscaper of the issue in which he advised that he never guaranteed anything and needs the balance amount by the 30 Sep otherwise he threatening to file legal action and charge me 25% interest on the balance owed.
I sent him a check for $267 and emailed him �As he failed to honor his verbal agreement I will forfeit the balance amount and if he cashes the check he accept the terms that he will not be paid anymore and as I would have to hire someone else to finish the job.�
If he cashes the check am I still liable to pay the balance him?
Appreciate your advise.
Ed
1 Answer from Attorneys
In your question you want to know if you have a valid affirmative defense of accord and satisfaction. Essentially, accord and satisfaction is a settlement agreement whereby there is a legitimate dispute, an offer is made to settle the dispute (accord), there is an acceptance and payment of money (satisfaction) releases the obligation.
In your matter, the landscaper never agreed to accept the money in consideration of a release of all his claims. Therefore, I do not think your affirmative defense of accord and satisfaction will be upheld.
What you should do is hire another landscaper to remove the weeds that the prior landscaper failed to do. The cost to remove the weeds to correct the prior landscaper's breach of warranty is an offset or counterclaim to any money the orignal landscaper claims is owed.
Mike.
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