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Can I sue of contract if a manufacturer will not provide

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Can I sue for breach...
Can I sue for breach of contract if a manufacturer will not provide proof that the product he has manufactured for me meets the contract specifications?
Submitted: 1 year ago.Category: Consumer Protection Law
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7/10/2016
Consumer Protection Lawyer: RONB-ESQ, Lawyer replied 1 year ago
RONB-ESQ
RONB-ESQ, Lawyer
Category: Consumer Protection Law
Satisfied Customers: 357
Experience: Right of Way Manager at Access Midstream Partners, LP
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Hello my name is ***** ***** I am a licensed attorney. I welcome you to JustAnswer. Please note: This is general information for educational purposes only and is not legal advice. No specific course of action is proposed herein, and no attorney-client relationship or privilege is formed by speaking to an expert on this site. The question and response may be viewed by other parties as noted in JA’s terms of service. By continuing, you confirm that you understand and agree to these terms.

Yes you can. You would likely file under a breach of contract cause of action if the contract was clear in specifications. If it was not so clear you would probably add the alternative cause of action breach of warranty of merchantability.

You might elaborate on what type of goods you were purchasing and the approximate value of the goods. Also did you have a written contract or was this an oral agreement? Please let me know if this contract was entered into outside of CA as my answer might be a little different.

Please ask follow up questions and/or elaborate more on the goods and value so I can provide you a more precise answer.

Regards,

Ron

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Customer reply replied 1 year ago
Dear RONB-ESQ:
I am being sued by a New Hampshire corporation for collection in the amount of $10,442.20 plus attorney’s fees and interest in the Superior Court of California, County of Sacramento as a Limited Civil case.
I have answered the complaint and filed a cross complaint for breach of contract asking for damages in the amount of the contract ($10,442.20) in the allotted amount of time as an in pro per.
Attorneys for the plaintiff / cross-defendant have filed a Demurrer to Cross-Complaint stating that under the California Uniform Commercial Code, a buyer is precluded from relying on an unstated defect to justify rejection or establish breach if he has failed to state a particular defect which is ascertainable by reasonable inspection (Cal. U.C.C. § 2605) and moreover, as a matter of law, a buyer must pay at the contract rate for any goods accepted (Cal. U.C.C. § 2607).
Plaintiff’s attorneys have also stated that my request for proof that the material used was that which was specified in the order was not contained in the original written contract, but in subsequent emails.
The contract is a written purchase order between a California corporation and a New Hampshire corporation who subcontracted the manufacturing to a mainland China company. The order listed the quantity required, a description of the part, that the material be a DuPont material with a specific call out and a detailed engineering drawing as to the part’s dimensions. The part, a plastic insulator sleeve, is a component for a device to hold down railroad rail to a concrete structure. This was specified and used by the State of New York DOT in a very difficult section of track that required a specific call out of the material used to hold up under extremely strained conditions. The order called for a specific DuPont thremo plastic material. After some difficulty of the manufacturer to meet dimensional requirements of the part, I asked that parts be struck from each of the molds and the dimensions conforming to the drawing be forwarded to me before I would give my approval. In addition, I had heard of Chinese manufacturers using counterfeit material so, I requested that some form of proof (bill of lading, packing list, etc.) be provided to show that the material used in the manufacture was as specified. None of these items were provided with the seller stating that all documentation had been lost. This is rather hard to believe with an international shipment, which requires many documents in multiple copies. I refused to pay seller’s invoice until the proof of adherence to the specifications was produced.
I have answered and counter sued for breach of contract. Plaintiffs’ attorney has filed a demure stating that our counter suite is not legitimate because the request for proof that the goods met the specifications was not in the original purchase order (contract). The purchase order did, however, specify the exact material to be used.
In addition, they state that I did not suffer any specific damages. This is true, I cannot attest to any specific or provable damages. I have a loss of business do to plaintiff going to two of my customers, once the goods had landed in the U.S., and offering to sell him the goods directly. They declined, but have been reluctant to purchase further material from me. If the part is not up to specifications, it could easily fail causing a derailment from a viaduct. I cannot trust the seller and use them to manufacture this part in the future. This means I will have to find an alternate manufacturer and reinvest in expensive tooling (molds).
Is there a provision in the law that would require a seller to prove that the custom goods he supplied met the order’s description and technical specifications?Regards ***** ***** you for your help,
Richard
Consumer Protection Lawyer: RONB-ESQ, Lawyer replied 1 year ago

Richard I apologize, but I have had some issues come up here that I need to address over the next couple days so I am going to opt out of the question so another expert can assist you. You will not be charged anything additional and you should wait to reply until another expert responds so the process is not delayed. I wish you the best with this issue and we have many experts online so I would expect you should not experience that much of a wait for a new expert. Also note that everything you have typed is saved and can be reviewed by the new expert so you won't have to re type anything.

Regards,

Ron

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Consumer Protection Lawyer: CalAttorney2, Lawyer replied 1 year ago
CalAttorney2
CalAttorney2, Lawyer
Category: Consumer Protection Law
Satisfied Customers: 10,244
Experience: I am a civil litigation attorney representing individuals and businesses.
Verified

Dear Customer,

Thank you for using our forum. My name is ***** ***** I hope to assist you today.

  • Your direct question in your follow up "Is there a provision in the law that would require a seller to prove that the custom goods he supplied met the order’s description and technical specifications?" is going to be both overly broad and not exactly what you need to address your current procedural issue (opposing a demurrer). (You can do some research on this subject and possibly find some case law identifying this specific issue here: https://scholar.google.com/scholar_courts​, but there is not a general point of law or general right to detailed manufacturing information.

So I would propose that we address the more pertinent issues at point:

  1. You are a defendant corporation attempting to represent yourself "pro se" please be aware, corporations and LLCs are legal entities, they cannot represent themselves in legal proceedings "pro se" - the plaintiff may not have raised the issue yet, but they can. You need to be represented by an attorney to have a legally effective defense, if you have to hire a lawyer anyway, you might want to do this sooner rather than later and get the full benefit of having an attorney represent you.
  2. You are opposing a "Demurrer" - the standard to oppose a demurrer is incredibly low. All that you must prove is that the complaint raises or identifies issues which can support a legal cause of action. In your case you are alleging that you gave specific design parameters to the plaintiff and they failed to meet those design parameters. You have a right to rely on "further discovery" (the process of litigation where information such as what the manufacturing process was, what products were used, etc.) to be brought before the court.
  3. Check your calculation of damages - damages should be directly (the legal term is "proximately") related to the plaintiff's breach of contract - so specific identifiable damages that result from their failure to provide product to specs (this would be something such as the specific client that these items were designed for refusing to buy the substandard product from you due to their manufacturing flaws). It would not likely include your speculative damages of potentially other clients not buying from you, or having to go to another manufacturer.
  4. If you insist on filing this opposition yourself (and not retaining a lawyer to represent your corporation), you can do so, there are many places to look for samples or examples of oppositions to demurrers. You can find some online (there are good ones and bad ones, I recommend reviewing a couple). Alternatively (and much more highly recommended) I would recommend visiting your local law library - they will have a pleading guide, a practice guide, and a cause of action guide (they may have other resources, ask the law librarian they will know their resources best), these are actually vetted and edited by judges and highly experienced attorneys. An opposition to a demurrer is a relatively simple motion from an attorney's perspective (again, all you must show is that there are adequate allegations to support a cause of action), and these resources will help you put it together.

You can find local attorneys using the State and local Bar Association directories, or private directories such as www.AVVO.com; www.FindLaw.com; or www.Martindale.com (I personally find www.AVVO.com to be the most user friendly).

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Customer reply replied 1 year ago
William B. Esq.,
I gave a written purchase order to a Seller and about two and a half months later added an email proviso that he provide me with proof the material was as ordered and some critical dimensions from the molds they were making. Seller failed to provide me with these items and I am holding him in breach of contract. Sellers attorneys contend that the emails adding conditions are not part of the contract. Can not something be added to a contract at a later date?
Thanks, Richard
Customer reply replied 1 year ago
What form do I use to oppose a Demurrer? I read I should file an ammended Cause of Action, but isn't there something else I should be filling?
Consumer Protection Lawyer: CalAttorney2, Lawyer replied 1 year ago

Dear Customer,

A contract cannot be unilaterally amended or changed after it is formed.

(So if you formed a contract asking for parts to be made, but did not specify quality or materials, the manufacturer is not bound by any subsequent specifications you retroactively impose on them).

If the manufacturer agrees to such a change (usually requires an increase in manufacturing fees), then this is an amendment of the original contract (a "new" contract is formed), and now you can hold them liable for the new specs.

You will need to draft your own opposition to the demurrer (there is not a form for this), you can find templates (examples) of these in your local law library, but this is a legal argument paper that requires some research and argument put together based on the facts of your specific case.

If you plan on filing an amended complaint to cure the defects - contact the opposing attorney first (do not just file the amended complaint), if they agree ("stipulate") to you filing the amended complaint, they will remove the demurrer from calendar, and you can file your amended complaint.

But in most cases, (and I suspect what is going to happen here), the opposing counsel is not going to withdraw the demurrer unless you can put together a complaint that deals with what they see as a very patent (obvious) defect in your claim. You will need to discuss this with the attorney (I do not know how cooperative they will be, attorneys attitude towards this type of issue vary widely).

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Customer reply replied 1 year ago
I did specify the material, a particular DuPont compound, and supplied a detailed engineering drawing in the order.
What I requested later that the Seller submit evidence that the material used was the material specified. He alleges that he has lost any papers related to his ordering the materiial, having it shipped or receiving it. I asked him for sample parts to test and he said there were none left.
Consumer Protection Lawyer: CalAttorney2, Lawyer replied 1 year ago

It sounds like your issue is probably with the precise way you are pleading your action (you probably have a valid defense and counter-claim, but are having trouble properly representing yourself).

As I noted above, you need to have an attorney represent your corporation in court.

You can address both of these problems by retaining your own litigation attorney. You may not have to go all the way through the litigation process, the vast majority of cases settle prior to trial, but you need to ensure that your claim does not get dismissed at the pleading phase - otherwise you do not get the proper leverage to oppose the manufacturer.

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CalAttorney2
CalAttorney2
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Category: Consumer Protection Law
Satisfied Customers: 10,244
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