By: Thomas S. Tripodianos Published: August 2017

Withholding Money for Poor Workmanship and Manufacturing Defects

Question.        Can money be withheld from a contractor for poor workmanship and manufacturing defects?

Answer. YES, as to poor workmanship but NO as to manufacturing defects.

Window Contractor entered into a contract with Homeowners to install 20 replacement windows in Homeowners' home, including 7 windows in a single-story addition. The contract provided for a total cost of $17,152.00 with a down payment of $7,152.00 and the balance of $10,000.00 due upon completion. The work was performed in November. Homeowners were not satisfied with the work and notified Window Contractor, who returned to perform punch list items. Following that, Homeowners were still not satisfied and withheld payment of the remaining balance.

Window Contractor filed a mechanic's lien related to the work in March of the following year and seeks recovery of the unpaid balance

Window Contractor indicates he met with the Homeowners prior to the start of the project to discuss the scope of the work, the time-frame and cost. Following that meeting, a contract was signed with respect to the project. The parties disagree on what was specifically part of the contract. Window Contractor's alleges that both parties agreed to a proposed layout of the windows. Homeowners contend that there was a second proposed layout of the windows, that ultimately became the agreed upon design. According to Homeowners, the difference in the two sketches is important, and material, to the contract, and highlighted the importance of the continuity of the lines of glass and line of sight.

Homeowners contend that Window Contractor did not even install the correct window design, pointing to a difference in the sketch drawn during the initial discussions about the scope of the project, and a later email with the proposed contract, and a different design. However, under the parol evidence rule, consideration of any such extrinsic evidence would be appropriate only if there was an ambiguity in the contract. The contract at issue is a two-page document that sets forth all the necessary specifications for this project. The contract is clear and complete on its face. Therefore, consideration of extrinsic evidence, in the form of sketches or negotiations is unwarranted, and inappropriate.

The windows installed by Window Contractor were custom made windows. After the installation of the windows, Homeowners had raised concerns, so Window Contractor and a representative of Manufacturer went to the site to investigate the issues. Various items were reviewed and inspected. Paint overspray was observed on the glass, and that would have been a manufacturing error. A trim piece was also observed to be too short, and that was also a manufacturing flaw. Two of the slider sash pieces also had weather stripping showing, which would need to be fixed. There was also a nick in one of the channel pieces that would require all four sides to be replaced. Window screens on the front sliding window did not fit property, and the Manufacturer representative indicated that would be replaced by Manufacturer. There were also defects noted on the vinyl wrap of the windows, in that some of the joints did not close, and the caulking was not done properly.

Window Contractor replied by email to the issues raised by Homeowners following that inspection. Window Contractor acknowledged warranty issues that would be addressed after Homeowners made payment. Those warranty issues included replacing a window sash, and damaged siding, as well as the overspray, screens, vinyl trim and paint chips. However, there is no evidence that Homeowners paid the balance due on the contract, nor made a written warranty claim to Manufacturer.

The Window Contractor performed under the contract, however, in many instances, the workmanship was less than acceptable.

Based upon all the foregoing, the Window Contractor should recover on its claim for damages in the amount of $10,000. From that amount, however, the Homeowners may deduct for their claims of poor workmanship but not for those relating to manufacturing defects.

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