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TexLaw, Attorney
Category: Legal
Satisfied Customers: 4430
Experience:  Lead trial/International commercial attorney licensed 11 yrs
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I had a legal contract signed by myself and the contractor

Customer Question

I had a legal contract signed by myself and the contractor to remove trees from property. The invoice was for 5200 dollars. I made 2 payments one for $1500 and the other for $4700. This was a mistake on my part, having thought I had only paid $500 on first check. Contractor says tough luck, and has refused to refund me the overpayment. His act is that he did more than he contracted, I have the contract and this is not so. How do I get my refund and who can I complain to to investigate/shut down this crook. He did not invoice the sales tax either!
Submitted: 5 years ago.
Category: Legal
Expert:  TexLaw replied 5 years ago.
You can sue for "Money Had and Received", "Mistaken Payment", "Unjust Enrichment" and "Conversion". These are all common law torts. As the amount you are talking about is less than $5,000.00, you can sue in small claims court, where it won't be necessary to get a lawyer. The contractor's defense that he has performed more than was originally contracted for and is entitled to the money is weak in light of the fact that you argue that the work performed was within the original scope of the contract.

You need to contact your local small claims court and obtain the forms for filing a claim and follow the directions on the form. You are suing for return of the over payment plus interest at the highest rate allowed by statute, which is likely 5% per year.

Please let me know if this answers you question. If it does, please approve for payment.

Best Regards XXXXX XXXXX Luck

Customer: replied 5 years ago.
its a no brainer that small claims is a possible route to take, means a day of lost wages, as I am self employed. Are there any other means? Also, he plays fast and loose with sales tax asking that I write the check to his name. I told him that the 5200 was what I would pay. Can I get some heat on this guy by complaining to any state agency ie dept of revenue, fair business practices etc?
Customer: replied 5 years ago.
its a no brainer that I can go to small claims court and mess with a bunch of paperwork and aXXXXXand a day of lost wages.Its a messy process but I Have done it successfully before. the judges can be quite arrogant and intimidating.I am looking for some other ways to get this taken care of. Can the state dept of revenue or fair business practices be notified? Can I report him to the Dept of revenue? What other ways can I get him pressured enough to be reasonable about this?
Expert:  TexLaw replied 5 years ago.
I understand completely when you say its a day of lost wages...small claims is a pain. Every time I end up in small claims court representing a client, I end up waiting all day for the court to get to my client's claim. Those are hours that I'm not working on someone else's file and not getting paid for (as I'm not going to charge my client for sitting around and waiting...would make it too expensive in a small claims scenario).

You can file a complaint with the Attorney General's office that he is not paying sales tax. There should be a consumer complaint division that can handle your complaint. The department of revenue will likely refer you to the Attorney General's office if you called them. However, I think your best bet would be to file the small claims suit, as I imagine the Attorney General's office will not do anything but send the guy a letter. Depending on where you are, your local small claims court might have a "night court" which would allow you to ask for a hearing after work.
Customer: replied 5 years ago.
Is this not akin to theft, can we attack him from that point?
Expert:  TexLaw replied 5 years ago.
It is different from theft. Technically, it is under the common law tort of "Assumpsit" which is now called "Mistaken Payment." The reason it is not theft is that there was no intent to steal from you. You mistakenly paid him too much and now he wont return the money. I wish I could tell you it was as easy as calling the cops, but it's not. They will tell you that this is a civil matter and that you need to take care of it through the courts.

I'd like to tell you that the Attorney General's office would do something for you as well. But honestly, having represented dozens of client's who have had disputes with contractors similar to yours, the only thing that gets their attention is when you file a lawsuit. I guarantee you that he took that money and paid someone else with it or bought supplies, etc. It's almost always a case of take from Peter to pay Paul.
TexLaw and other Legal Specialists are ready to help you
Customer: replied 5 years ago.
Could I email invoice to u to review.
Expert:  TexLaw replied 5 years ago.
The JustAnswer agreement prevents me from giving out my email to customers. The only way I can review it is if you would be able to paste it into this forum. Sorry for the inconvenience.
Customer: replied 5 years ago.
Any possibility I can email invoice for u to review to be sure all is solid before proceeding further?
Expert:  TexLaw replied 5 years ago.
Again, the justanswer expert agreement forbids me from giving out my personal email to you. The only way I can review information is by you posting it through this website. Sorry for the inconvenience.