What to do if a siding business was to do some work on our house and put on a specific color material but the product is not the same color?

We have a contract. We informed them of that fact the day it was delivered but they haven’t responded to us for 48 hours. They also didn’t show at the appointed day to do the work and at this time no work has been completed. We have since decided to no longer work with the company due to communication issues on their end. Although our contract states that all deposits would be forfeited if we cancel we would want to try to get it back. Do we have a case?

Asked on September 8, 2014 under Business Law, Kansas

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 6 years ago | Contributor

Yes, you should have a case to recover your deposit, because this is not the case of you changing your mind--this is a case of the contractor breaching the contract (not using the agreed-upon color; not showing up on the appointed day or doing any work) and also arguably violating the implied covenant of good faith (the requirement, added by the law to all contracts, that the parties thereto deal with each other in good faith and fairly). When it is the contractor which fails to perform or violates the contract, then the customer can recover the deposit, since they are not allowed to take your money and refuse to perform as agreed. Of course, if they will not voluntarily return this money, you will have to sue them to get it.


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