06-25-2008, 08:01 AM
Join Date: Sep 2007
MJB Bixby vs Losoya
MJB Bixby vs Losoya
Plaintiff itself has breached the contract sued upon in several respects
including but not limited to the following: failing to perform repairs and
work called for under the contract in a substantial and workmanlike fashion;
failing to complete repairs and work called for under the contract; failing
to have contracted for repairs properly approved and reinspected by a termite
and pest company as called for under the contract; overcharging for various
items and repairs. By reason of plaintiff's breaches of the contract,
plaintiff's claims for amounts allegedly due and owing are barred or,
alternatively, are reduced by an amount according to proof at trial.
F. By reason of plaintiff's breach of the contract as set forth in paragraph
4E above, the allegations are incorporated hereby this reference, answering
defendants and each of them are entitled to an offset in an amount according
to proof at trial as against the amount which plaintiff claims is due and
owing to it under the contract.
G. As a result of plaintiff's failure to perform and/or complete work in a
substantial and workmanlike fashion and the other breaches and failures of
performance on the part of plaintiff as alleged in 4E above, there is a
failure of consideration to support performance on the part of these
answering defendants, and each of them, to pay any amounts alleged by
plaintiff to be due and owing under the contract.H. The provisions of the contract by which plaintiffs charged defendants the
amount of $1,600 for repairing earth-to-wood contacts and $1,600 for debris
removal are unenforceable in that these charges were unconscionable at the
time the contract was made in that they were grossly in excess of any
reasonable amount to be charged for the work in question and bore no
reasonable relation to the true value of the services provided for.
I. By reason of the grossly excessive overcharges for items of work as
described in 4E above, and the breaches on contract described in
Paragraph 4H, there is a failure of consideration to support plaintiff's
claims for amounts due and owing for such work.
Last edited by Ayatollahgondola : 06-25-2008 at 08:23 AM.