Hawa v. Moore

947 N.E.2d 421 (2011)

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Nature of the Case

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Facts

D bid on a job with P to provide a recycled concrete base for a parking area. D wanted $5000.00 down to start work - $5000.00 due when half of the area is done - Remaining balance is due upon 75% of work completed due to remaining material cost =$3500.00. P and D agreed to a contract price of $12,000 instead of the $13,500 bid. P wanted to see samples prepared with the material and to make sure it supported heavy traffic. In February 2009, P looked at the samples and handed D a $5000 check to begin work. D obtained two types of recycled concrete, each from a different supplier. From K-Enterprises, he bought $3000 and reserved $2000 of #2 rock. From IMI, he obtained #53 rock at no cost. D used J Stucki Trucking to transport the materials and some equipment to P's storage facility at a cost of $3795. The material was placed into nine piles. P complained that there was wire in the rocks and told D that he would not make the second payment because he was 'not happy.' D assured him that any wire would be separated from the rocks, and P allowed D to spread six of the nine piles. D asked about the second $5000 payment. P told him he needed to see eighty percent of the parking lot done before he would make the second payment. P told D that his bank would not advance him any more money for the second $5000 payment until it could inspect the work. D told P that he 'would meet at any convenient time with him and his banker.' D then moved the power rake blender to the front of the property, ready to meet the bank and complete the job, but the bank never visited the site. D left the power rake blender at the property for five days before he walked off the job. P filed a breach of contract claim in small claims court. Two months later in May 2009, D had more free #53 rock hauled to his own property, where he stockpiled it for use on P's project, at a transportation cost of $1500. D then filed a counterclaim demanding payment on the contract. D submitted a list of total costs for $10,495. This included the $1500 cost of hauling the free #53 rock to his own property. P denied that half of the area of the parking lot was done as required by the contract. D got a judgment of $4745. P appealed.