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Copyright © 2007, Gerald Bamberger


Homeowner owned a four bedroom colonial that had fallen into disrepair because he had deferred many routine maintenance tasks. Every few months, another elbow or downspout would fall from his roof onto his lawn, but Homeowner did nothing.

One day, Homeowner resolved to have his gutter fixed once and for all. After consulting with several friends, he called four gutter repair specialists for estimates on replacement gutters. Three contractors returned bids of $1150, $1215, and $1015. Gus the Gutter Guy returned the low bid, $975. Homeowner and Gus entered into an enforceable written contract "to replace Homeowner's gutters for the sum of $975."

After two hours at work, Gus approached Homeowner. "I'm really uncomfortable talking to you about this," he said, "but I am going to lose money on this job. My measurements were off by thirty linear feet. To earn a profit on this deal, I am going to have to charge you an extra hundred dollars." Homeowner orally agreed that he would pay Gus $1075 upon completion.

Gus completed the gutter repair job in a workmanlike fashion, and billed Homeowner for $1075. Homeowner sent Gus a check in the amount of $975, marked "payment in full." Gus cashed Homeowner's check, and has commenced suit for the remaining $100.

Should Gus prevail in this action?

(a)     Yes, because there was no good faith dispute, and therefore the "payment in full" check could not effect an accord and satisfaction.
(b)     Yes, because the modification was made in good faith.
(c)     No, because of the preexisting duty rule.
(d)     No, because the Statute of Frauds bars enforcement of the modification.

To see Professor Bamberger explain the answer in detail click here





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