T.H. Cheshire & Sons v. Berry


New York Law Journal


Judge Andrew Tarantino Jr.

Plaintiff contractor sought payment for materials and labor provided to Berry. Plaintiff alleged it initially estimated a project cost of $13,350, but as Berry did not accept the "fixed cost" proposal within 20 days, plaintiff considered the project a "time and materials" job, significantly increasing costs. Berry claimed, and plaintiff did not dispute, that she verbally accepted the proposal within the requisite time. The court noted the proposal did not require written acceptance, thus, as Berry timely accepted the proposal, the cost of the project should have been $13,350. Further, plaintiff failed to prove there was a meeting of the minds on whether the project cost was converted from a fixed cost to a time and materials cost, noting each time plaintiff told Berry he was billing for time and materials, she refuted it. The court also found plaintiff only established the value of three "extras" items supporting an award of $1,341 to plaintiff. However, the court found plaintiff lacked the capacity to enforce the subject agreement, stating plaintiff's failure to provide testimony or documentary evidence on the existence of a required license to engage in the subject business was a fatal defect. As such, the complaint was dismissed.

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