Opinion
No. 4002437
April 6, 2006
MEMORANDUM OF DECISION
The plaintiff, United Builders Supply Co., Inc., provided the defendant with building materials and floor tiles for property known as 7 Wadsworth Lane, Waterford. This was referred to as the Mago Point Project. The defendant's representative, Brian Lyman, testified that he met with Charles Enos, as salesperson at United Builders Supply Co., Inc. Lyman informed Enos that he was soliciting bids for the project which Lyman testified was customary in the industry. A bid was finally accepted by the defendant with the total price, including sales tax, in the amount of $48,859.53. Lyman testified that Enos agreed to provide all the materials shown on the plan for this price.
The plaintiff presented as a witness, Diane Chapman, who stated that the policy of UPS was to open accounts. She stated that all of the invoices were kept in the ordinary course of business and were admitted as a full exhibit and separated into paid and unpaid invoices. She testified that at the time the account was open the defendant had the option to require that the defendant sign for the goods. If the defendant selected that option, no goods would be left on site without an employee's signature of the defendant. The defendant did not select that option when opening the account according to her testimony. Mr. Lyman, who testified, did not open the account, sign the credit agreement or have any firsthand knowledge of the events surrounding the account. He could only say that he required signatures. Yet he admitted on cross-examination that he had at least two project managers on various sites and he visited them infrequently, once every two months. Finally, Ms. Chapman testified that it was UBS's policy to scan all of the invoices into its computer system, showing the disposition of all the goods and deliveries made. UBS employees noted that when no one was on the project site and the goods were left that the goods were left for the defendant. Ms. Chapman finally testified that despite numerous demands for payment the defendant refused to pay.
The defendant's defense was that either the goods were not delivered or the cost exceeded an alleged fixed price quote.
The defendant avers that it paid the entire quoted amount of $48,859.53. It argues that on cross-examination, the plaintiff's representative admitted that its report did not allocate payments to any particular invoice or particular job, which is what would be necessary to distinguish between Mago Point fixed price project and other billings. The defendant also claims that the plaintiff's delivery records fail to prove delivery of significant quantities of building materials. The defendant states that his own business involves deliveries and that goods are never simply dropped off without receiving a signature. The plaintiff's representative admitted that they had no process in place to notify a customer if a delivery is made in the absence of anyone available to sign for it.
Ms. Chapman explained some of the deficiencies by reference to type-written notations contained on the invoices, but admitted that such notations were placed on them prior to the goods being shipped and delivered to the defendant's job site. Both parties presented large amounts of invoices, some signed and some not signed. Lyman produced invoices from another supplier which he claims were part of the quote, but were never delivered by the plaintiff. The parties present confused and conflicting testimony regarding deliveries. The defendant states that Lyman paid and over-paid on materials for the Mago Point project and argues that the plaintiff's billing records and delivery records are in such disarray that it cannot prove with any degree of certainty any particular amount owed. The defendant argues that his testimony and records prove that no amount is due.
On the other hand, the plaintiff claims to have proven delivery and reiterates that the defendant Lyman agreed to accept the delivery without signatures otherwise the plaintiff would never have left the goods at the site.
The court has reviewed the invoices and the testimony in the case and finds in favor of the plaintiff. The court, therefore, awards the plaintiff damages in the amount of $11,406.41 for unpaid invoices. With respect to the defendant's counterclaim and defenses, the court finds that the plaintiff has proven that these figures are incorrect and that the defendant's witnesses made misrepresentations in its calculations by claiming credits given to it increased it's cost when the defendant's own accounting exhibits shows the opposite. The defendant's claim was put on through witnesses who had no personal knowledge and could not rebut the fact that all but certain invoices showed delivery of goods. The court accordingly awards judgment in favor of the plaintiff in the amount of $11,406.41 for goods sold.
Interest and attorneys fees were calculated on plaintiff's exhibit 5. The court finds interest as of January 10, 2006 to be $3,224.86 and attorneys fees of $3,004.30 through November 30, 2005.
The court also finds in favor of the plaintiff and against the defendant with respect to the counterclaim.