Sunday, July 30, 2006

UNRETURNED CALLS AND AN OBLIGATION UNRESOLVED

A few weeks ago I spent four hours in the rain, shoveling a ton and a half of bleached oyster shells onto the front lawn of my house.

Borrowing from a landscaping technique she'd seen while visiting Cape Cod, it was my wife's inspired idea to bring the shells to our small front yard, which is in a neighborhood about a block from Boston Harbor. The shells were dumped onto the city sidewalk in front of our house, however, and I needed to move them to avoid being ticketed for blocking the sidewalk.

The shoveling, and my subsequent backache, gave me an appreciation for exactly how hard landscape contractors work.

One of them is Leon Gray of Fullerton, Calif., who e-mailed me to ask about how far he needed to go to locate a contractor to whom he might owe some money.

"I was contacted by another firm to bid on a small waterfall feature at a private residence," Gray writes.

He and the other contractor scheduled a meeting at the residence, which Gray missed because poor cell-telephone reception had caused him to think that the meeting was in the evening rather than in the morning.

While at the residence, Gray met briefly with the homeowner and found out exactly what was needed. He prepared a bid to give to the contractor, but found it impossible to get in touch with him.

"I called a number of times and left voicemails," he writes. "I even called his assistant and had her leave a note for him to call."

The homeowner also called the contractor and received no response. A couple of weeks passed, and the homeowner was growing impatient, so Gray gave him the bid for the waterfall job. At the time, Gray says, he stated very clearly that, though he was offering a bid for informational purposes, the arrangements should be made through the original contractor.

"But if he refused to return either of our calls," Gray writes, "then I feel he is out of the loop so far as getting any referral fees. The homeowner emphatically agreed with me."

Gray wants to know if he is still obligated to continue trying to contact the contractor, given that none of his previous calls have been returned.

I believe that he is.

Some contractors -- the contractors who work on my own house, for example -- subcontract parts of jobs and let the subcontractor directly bill the homeowner without taking any referral fee. That does not seem to be the case in this instance, however.

While the contractor may be shirking his responsibility by being so difficult to contact, and apparently is annoying his client, it doesn't remove Gray's obligation. Without the initial contact from the contractor, he never would have found the job in the first place. Their initial conversation defined the obligations of the relationship, and nothing that has happened since, not Gray's missing the first meeting nor the contractor's failure to return telephone calls, has altered those obligations.

The right thing for Gray to do is to track down the contractor to resolve the amount of the referral fee. If this means going to the contractor's office in person, that's what he should do.

If, however, it turns out that the contractor has for whatever reason decided not to take the bigger landscape job, and if the homeowner still wants to hire Gray to build his waterfall, then the contractor should release Gray from any obligation.

2 comments:

Anonymous said...

Mr. Seglin:

I am writing in response to your Sunday, July 31st column printed in
the Orange County Register here in Southern California. I read your
column most every Sunday and find it interesting and
correct. However you really missed the boat on this one!!!

There is now way that Gray should have to track down a contractor
like a hunted person in order to shove money down his throat. If the
contractor has absolutely no interest in returning any of his calls,
nor the clients calls, then that's his own fault and hard luck not
collecting this finders fee. Maybe it will teach him a lesson that
he needs to be more interested in his work and his
customers. Contractors are a dime a dozen and one who has no
interest in his own customer should be dropped for another who will
consider the customers wishes and perform his job correctly.

Craig Williams

Anonymous said...

Mister Jeffrey Seglin has once again given us a dilemma, on how far does one need to go, in order to fulfill an obligation. Leon Gray had been invited by a fellow contractor, to bid on a small waterfall feature, for a private residence. After meeting with the owner of the residence, concerning the project, Gray and the home owner waited for a couple of weeks, in order to hear, from the other contractor who gave Gray the referral. After countless phone calls and e-mails, the other contractor could not be reached, nor would he return their messages. The home owner was anxious for the project to get underway, and recontacted Gray to begin the project. Still Gray feels obligated to pay the first contractor, the referral fee. My argument is that after weeks and months of making a honest, good faith effort to pay the contractor, Gray's obligation to pay the debt is over. This is why you sign a contract, in order to lay out the fidicuary ,and the performance duties of all parties
involved in such a project.

Todd Brklacich
Murray, UT.

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