Legal Question in Business Law in New York

compensation

I work for a design and printing company in Hong Kong. Recently we printed a brochure for an antique dealer in New York. The brochure was delivered 5 days later than the client requested. This client claims that the delay made it not possible for them to mail out the brochure in advance to reach their out of town cutomers to come to their exhibition. 1200 out of the 2000 delivered brochures became useless to them and cause them big loss in business. The asked for compensation and I offered 15% (US$700) of the printing cost. They thought the amount was insulting and they wanted more compensation but did not say how much.

question 1: In this case, am I responsible to their business loss?

question 2: client agreed to pay 70% deposit before printing. They have not paid any deposit up to this moment yet I still delivered the brochures although 5 days late. Have they breached the agreement then? Am I still bound to the agreed delivery date?

question 3: client never signed the formal quotation but I have proof of all emails that they agree to the quotation. Is this suffcient as legal proof?


Asked on 9/21/08, 6:21 am

2 Answers from Attorneys
Michael Markowitz Michael A. Markowitz, PC

Re: compensation

Question 1: In this case, am I responsible to their business loss?

A. Business loss is deemed consequential damages. It is well settled that consequential damages are not recoverable in an action to recover damages for breach of contract unless the plaintiff proves that such damages were foreseeable and within the contemplation of the parties at the time the contract was made, American List Corp. v U.S. News and World Report, Inc., 75 NY2d 38, 550 NYS2d 590, 549 NE2d 1161. Thus, for example, when the vendor knows at the time of contracting that the vendee contemplates resale and that the goods cannot be obtained elsewhere, the vendee may recover the profits on resales that would have been earned had the contract not been breached, Czarnikow-Rionda Co. v Federal Sugar Refining Co., 255 NY 33, 173 NE 913.

Question 2: client agreed to pay 70% deposit before printing. They have not paid any deposit up to this moment yet I still delivered the brochures although 5 days late. Have they breached the agreement then? Am I still bound to the agreed delivery date?

A. 2 questions in 1. To answer the first, deposit was a condition before delivery. You waived the condition by making delivery despite no deposit. That does not mean that you waive all damages.

Answering the second question is particular to the contract. If the contract called for the delivery date to be essential to the contract, then you would be bound to the date. If the date was an approximate, then you would not be bound to the delivery date.

Question 3: client never signed the formal quotation but I have proof of all emails that they agree to the quotation. Is this suffcient as legal proof?

A. Yes. Furthermore, proof of delivery of brochures and acceptance by dealer also constitutes legal proof.

If you need further help feel free to telephone or e-mail my office.

Mike.

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Answered on 9/21/08, 9:24 am
Fahri Toga TOGA//OKSUZ

Re: compensation

Dear Sir/Madam,

Here is our WEB site address

http://www.wlfenternasyonel.com

You can personally ask your question and our attorneys help you to solve your problem.

Thank you.

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Answered on 9/22/08, 6:07 am


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