Legal Question in Construction Law in California

Re: acceptance of material

Without a contract, you've bought yourself a dispute that could end up in court. More accurately, your failure to get customer sign-off is the problem. There is no easy answer, except to 'document' approvals as you go.

Re: acceptance of material

This would be a good set of facts for a Bar Exam question - there's plenty to write about.

First, I would say there is a contract here, maybe two contracts. If there is but a single contract, it may or may not be divisible for purposes of enforcement. Apparently there is no writing, so the contracts are probably oral, although there is also in theory an "implied in fact" contract when the parties have no express agreement at all, but behave as though they were in contract.

(When you say "my installers," I'm assuming you mean people working for you as employees or your contractors and not independent third parties.)

So, there is a contract covering the sale and delivery of stone, and a contract for the installation of the stone. Maybe it is but a single contract, but if so, it's probably divisible for purposes of legal analysis and enforcement.

The delivery of the stone is a sale of goods and subject to the Uniform Commercial Code. The Code contains a "perfect delivery rule" requiring that goods conform to the specifications of the contract or to the sample furnished in every detail, or the customer has the right to reject the goods. However, it can be argued, probably successfully, that the customer failed to reject the goods within a reasonable time after their delivery or tender (Code section 2602, 2606). Acceptance of any part of a "commercial unit" is acceptance of that entire unit. So, I think the customer has bought the stone and has no right at this point to reject it.

Now, as to the installation contract or the portion of the contract dealing with the installation, the first question is whether a license is required and then whether you have the license. If you don't have a required license, you have no rights against the homeowner with respect to the installation agreement and have probably committed a crime as well.

If you do have a license, you're still in trouble, because as you probably know, most home improvement contracts must be in writing and meet certain other standards.

However, on the sale of the stone, I believe you have a good chance of prevailing if sued, and it depends upon whether the customer had a reasonable chance to inspect and reject and failed to do so, or whether the judge or jury would believe the customer hadn't had a reasonable opportunity to inspect.

The difficulty in predicting an outcome lies in guessing, from limited facts, whether the inspection opportunity will be deemed "reasonable" or not.