I gave a contractor a deposit and then cancelled the job before it had begun so does he have the right to keep my deposit?

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I gave a contractor a deposit and then cancelled the job before it had begun so does he have the right to keep my deposit?

I hired someone to build a retaining wall. I accepted his estimate and he asked for

half of the money before he began the job. I gave him 3,700 as a deposit. Then I

showed his proposal for the wall to another contractor who said it didn’t meet

code and it would fail and it was overpriced. I cancelled the job a week before it

was scheduled to start. No materials had been ordered. The contractor had spent

only 20 minutes at my home and send a simple estimate. He said that he would

return my deposit but it is 4 months later and I haven’t heard from him. I left him

some messages on his cell phone but he will not return my calls. What should I do

to get my deposit back?

Asked on December 7, 2016 under Business Law, Massachusetts

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

IF the second contractor was right and the proposal did not meet code, then you can likely treat the contract as void for ilegality (you can't contract to do something illegal); or if the first contrator intentionally misled or deceived you as to what would be an adequate wall (lied about what was required), you may be able to treat the agreement as void for fraud. If the agreement is void, he has to return the money (but if doesn't, you'll need to sue him for the return--there is no other mechanism to get it back). Note that to sue someone, you *must* have his address, because you can't "serve" him with the court papers otherwise.
However, if the wall would have worked (even if it wasn't as good as it could have been) and was to code, then you have no right to get the money back unless and only if he refuses to go ahead and do the work (if he doens't actually do the job after you ask him to go ahead and give him some reasonable time or chance, then he is violating or breaching the contract, which would also let you get the money back). The fact that he charged more than another contractor would is not a legal basis to get out of the contract: people overpay all the time, and there is no legal right to the lowest or best pricing. So if there is no illegality and no fraud, you'll need to ask him to do the work and give him a reasonable chance  to do so, and can only sue for the money  if he doesn't.


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