Legal Question in Construction Law in Washington

failure to perform?

We signed a contract 7 months ago w/ contractor to install/finish hardwood floors & refinish adjacent hardwood. Paid 1/2 up front & agreed to pay balance upon completion. Install was fine, but the finish very blotchy. He agreed there was a problem & stated we should wait 6 months to allow full curing which could eliminate the issue. 6 mos later, problem still exists & he sent the same sub back to redo the floors. However, the sub did not refinish the entire floor just certain sections. It is important to note they used a different product than the one requested & used the 1st time and when I asked them about the product difference they said ''all waterbourn finishes are the same.'' There is an obvious sheen difference between the sections that were redone & the sections they didn't work on. We are not comfortable giving this company another opportunity to fix it & we would like to terminate the contract.

- How many chances do we have to give this company to make it right?

-We will need to hire another contractor to completely sand/refinish the entire area. Is the 1st contractor responsible for those costs?

-Company failed to send us notification of their right to file a lien, so can they file one now?


Asked on 6/23/07, 11:19 pm

1 Answer from Attorneys
Elizabeth Powell ELizabeth Powell PS Inc

Re: failure to perform?

Are you sure this isn't a law school final exam? :-) Sure it isn't reading iron plumbing pipe?

Do you have each and every episode of this transaction in writing? Is there an initial contract, are the agreements about the re-finish in writing, and what did that agreement say about your satisfaction?

You will, to a great extent, be held to the contract you signed.

The general needs to know that you are not satisfied with the sub's performance. In writing. The general needs a chance to make it right - if you fire him you remove his opportunity to re-do the work, which relieves him of the responsibility to fix it. That's not fair.

The general is not contractually liable to pay another contractor to do the same job over again for you. The general may be liable to do the job right, but that's different from paying somebody else.

As for his lien rights - a lien is not the same as a judgment. There is a legal theory called quantum meruit, also unjust enrichment and that means that if someone confers a benefit on you and you accept the benefit, they are entitled to be paid for their work.

A lien is just a shortcut; their failure to timely file one does not mean you get the floor for free.

You may have a perfectly valid case. But contracts require good faith to happen on both parties' behalf. Hope this helps. Elizabeth Powell

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Answered on 6/24/07, 2:03 am


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