Legal Question in Credit and Debt Law in California

A few months ago, I did an estimate to design and create specialty slip covers for a customer. My estimate spelled out each item..ie: design service $200 total, pattern $150 total, 4 sample covers for her approval at $250 EACH (but if she liked the first sample, there would only be ONE of these charges, not EACH multiplied by FOUR charges), production covers would be $500 EACH.

She gave me an agreed upon deposit of $1000, to go begin the process. Her check did not clear the bank. I incurred expenses - time and materials prior to knowing her check bounced. She kept telling me a new check was in the mail. Approximately 6 weeks later, she wrote me another check for $2000.00, twice the amount of her original deposit check. She loved the first design/sample, so she ordered four identical covers.

I made one cover and she picked it up. Now the other three are completed, and she is demanding because she paid two-times her original deposit, and stated in an email to me that she paid in full, she is paid in full. I have invoiced her for $600 (the $2600 for design, pattern, one sample cover and four covers, less her $2000 deposit).

She contends I am causing her lost income due to not having the covers to market and sell. She is threatening to sue me. What are my rights? I am willing to give her the covers, but she needs to pay her bill. The estimate is only signed and dated by me, not her, but she accepted it twice! Once upon the first deposit and a second time when she doubled it...? Just because she paid more the second time, doesn't negate the amount she owes, does it? That estimate is the ONLY place where a discussion of money took place.

Please advise.


Asked on 12/30/11, 10:52 am

1 Answer from Attorneys

It sounds like you are both "merchants" under the Commercial Code (California's version of the Uniform Commercial Code), which simplifies things. Under the UCC you had a contract for sale of custom goods at the time she accepted your written estimate by giving you a deposit. That formed a contract for production and sale of custom goods. She could have modified your offer by sending a writing with the deposit rejecting your offer and stating she would pay a different amount. If you then accepted the deposit, the contract would have been formed at that price. However, sending a bad check and later replacing it with more, after offer and acceptance formed a contract, does not allow her to unilaterally alter the contract price in her favor by email or otherwise. She took your offer when she sent the first deposit check without any counter offer or modification of the price at that time. Now we get to remedies. You don't mention delivery and payment terms. If you did not specify something like payment in full due before final delivery, or due on delivery, you did not reserve your right to hold up delivery until paid. Her bounced check and statement that she has paid in full, however, gives you an out. You have legitmate reason to doubt she can/will perform if you deliver. So you have a right to demand written assurance of performance before you deliver. In the end, though, it may be better to be the plaintiff than the defendant, by delivering the covers, and then taking her to small claims for the blance owed.

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Answered on 12/31/11, 12:08 pm


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