breach of contract small claims vs civil litigation
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breach of contract small claims vs civil litigation
I sold a Food truck to a woman last year on installments. we signed an original contract, executed and notarized 7-31-2017. The buyer, wanted to obtain physical possession sooner and asked for an addendum, both agreements, her terms and payment schedule. An addendum again sxecuted witnessed by notary. I signed title over as agreed in addendum to avoid liability and insurance but did not provide a bill of sale. She took possession of truck and proceeded to use it to generate income fall 2017 to spring 2018. A balloon payment of 8,000.00 was due april 30, 2018. She advised of anticipatory breach appoximatly March 17, 2018 by sending a 250.00 payment and advising that she needed to upgrade truck power source and wouldn’t be paying me on contract schedule. I am in extreme financial duress and advised that it was not on contract. She decided to sell her primary residence, and I found that on craigs list she is also selling the food truck. The balance due on this contract is 14,750.00. She proceeded to tell me that because she had title free and clear she does not have to pay me. Additionally she produced a phony bill of sale, a clear forgery. Hand written by her, and not my signature. So, I’m in a pickle. my research on civil breach of contract can be a very drawn out, as well as costly process for the 14,750. In Montana the max for small claims in 7000.00. Technically she is only in breach of the balloon payment for 8,000.00 due the april 30, 2018 contract date. But she has another balloon of 2500.00 due in july and additional payment going through August. So, here is my question…..CAN I sue in small claims for the 8-lets say 7k past due, and have the rest of the contract not breached still be valid?
Asked on May 12, 2018 under Business Law, Idaho
Answers:
SJZ, Member, New York Bar / FreeAdvice Contributing Attorney
Answered 5 years ago | Contributor
When a contract is breached, it is breached entirely: it is not partially breached. All amounts due under the contract become due immediately upon the breach. Under the "entire controversy" doctrine, you have to sue for *everything* you may be entitled to all at once: anything you are owed or due but do not sue for, you waive or give up. So you cannot sue only for the $7,000 then "wait and see" if she pays the rest of the money--if she does not, you will be unable to sue for it later, because you did not sue for it now.
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