He partially gutted the bathroom. He made a mess of my carpet and left oil spots on several sections of my driveway. I told him not to finish the bathroom until he cleaned up the driveway. He hung up on me and has not returned my calls. I know what county he lives in and only have a cell number. How can I get an address: The checks were made out to his wife - can I sue them both in small claims court? If I can get an address.
I know better - but he talked the talk.
Estate Planning Attorney
Okay, I am assuming that you did not have a written contract.
First determine WHO? Before you can get your money back, you need to determine who is responsible for returning the money.
You indicated that the check was written out to his wife. Have you contacted your banking institution to verify who received and endorsed the check? Some of the details on the endorsement may point you in the direction of who to file an action against.
Have you checked http://www.dpor.virginia.gov/dporweb/dpormainwelcome.cfm to determine whether the contractor, or his wife have a contractor’s license? If they do, this may indicate their address.
Have you checked with Fairfax County Tax office to determine whether they have a business license? If they have a license, then the county will have a last known address, which will serve for an address for your lawsuit, unless you know that they don’t live there.
Additionally, you need to determine whether the contractor is a sole proprietor, partnership, corporation etc. You can find this out at http://www.scc.virginia.gov. If they are registered as a partnership, LLC or Corporation, you can get their address here as well.
If it were me, I would remember the IRS defines a Partnership: A partnership is the relationship existing between two or more persons who join to carry on a trade or business. Each person contributes money, property, labor or skill, and expects to share in the profits and losses of the business. http://www.irs.gov/businesses/small/article/0,,id=98214,00.html
Since she cashed the check that was written to her, I would argue that she joined her husband to carry on a trade or business.
Second, you need to define the contract.
In order to form a contract, you need two elements:
Mutual Assent: Determined by an Offer and Acceptance
Consideration: Typically money for performance
In order to pursue a contract claim you need a breach of that contract.
If you do not have a written contract, you will have an uphill battle.
Virginia Law does allow for oral contracts that are required under the Statue of Frauds (SOF), which briefly are contracts for marriage, take longer than a year to complete, are for land, are executory in nature, for goods valued in excess of $500, or for suretyship.
Unless this bathroom would take longer than 1 year to complete, or included individual goods with a value in excess of $500, I would argue that it did not violate the SOF.
Now since the contract is oral, and arguably enforceable, you will need to determine what promises were made. What was the scope of the work that was to be performed by the contractor, when was the work to have been performed, when was the work to have been completed and what was the amount to be paid for the work. You additionally will be required to show that the parties agreed on these terms.
Next you have to determine your damages.
In order for an action to succeed, you will need to show that the defendant breached this contract, and you were damaged as a result. As all of your terms are oral, and you must demonstrate that he agreed to those terms, I believe you have an uphill battle.
Sam Mansoor, Attorney
Mansoor Law Firm, PLLC
50 Catoctin Circle NE #301
Leesburg, VA 20176
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