Has anyone had jobs canceled at a venue where they play periodically and had to sue in Small Claims Court for breach of (oral) contract to get compensation? This was an ORAL contract (not a WRITTEN one) which I understand is just as binding as a written one if you can prove that it happened.

I've done it (been to Small Claims) in the past every so often with a single client (wedding type event) and won every time. This time I'm up against a huge corporation with an OJ "dream team" defense attorney.

Your experiences? Or comments on "breach of ORAL contract" and other legal issues connected to this type of a situation?

Hi Mark, early on in my club gig work I had no choice but to accept oral contracts, as I didn't have the clout to demand a written one, and merely accepted the occasional last minute club gig cancellation as simply a part of the dues that a young musician starting out must endure. On the other hand, I never had a problem getting a written contract for special event party & wedding gigs.

That said, only after I (paid my dues) gaining experience, and demand for my services, was I finally able to require a written contract for club work as well. Though in theory an oral contract legally binding, a written contract can help prevent having to take it to court, and if you do, a written contract will give you the clear winning edge with the judge.

Scott

Wow - this must have been a high paying job. I'm lucky I only play hour gigs. If someone cancels, so what? They usually rebook if I handle it with care. In 2007, I've only been stiffed ONE time, but it's not a place I'd want to play anyway.

IN California where I live Attorneys are not allowed in small claims court to represent a client.
Bebop

So that means you would have to sue an individual instead of the corporation? Someone has to represent them.

IMO it's not worth the trouble, if you had done the job and not gotten paid that'd be different.
How far in advance did they cancel? Why did they cancel? How much money are you talking about? Did they have a right to cancel? In your oral contract did you you talk about the penalties for cancellation? these are all questions that will be raised.

You know they could try and blame you for example, he wasn't right for the place , he couldn't draw a crowd, we didn't make any money, he made us lose business, our customers complained. True or not that might hurt you rep more than the money would help.

If it were me I'd drop it and not play there anymore.
Let us know how you make out.




[This message has been edited by mikeathome1 (edited 09-30-2007).]

Guys, if it helps anyone else, here are brief details of the situation. I play "elder care facilities" during the week to pick up extra bucks. At one location, I slipped on the floor and fell on my elbows. They were a regular account...I asked only for $175 for doctor bills. They admitted nothing as we live in a litigious world. I had to take them to Small Claims Court. I lost as it was decided I was more than 51% at fault. I was OK with that as the accident WAS partly my fault.

Now no sooner did I get home than I found a message canceling my remaining 3 dates at this place for a total loss of $575. I reckon they thought I would be retaliatory on their premises.

Scott...I NEVER, EVER accept a standard weekend booking (wedding, etc) without a contract. I've had to go into Small Claims 3-4 times and won every time WITH that contract so I agree with you there. But when you're doing the elderly places, they're too busy to ask for one. And besides, most of my clients like my work and only cancel for legit reasons. I'm OK with that.

Reference the "oral" contract. It IS just as binding as a written one, and, yes, it is harder to prove. What I do, if I have an inkling that a client is going to cancel, is to telephone them about it and ask them to leave me a message about the possible cancellation as I "won't be home for the rest of the day." This way they leave a message canceling the job and I have my evidence on my answering machine (for the judge to hear) that there WAS indeed a job (for those deceitful clients who deny ever even booking).

Mike...you're right too. Your comments:

"It's not worth the trouble, if you had done the job and not gotten paid that'd be different."
There's principle at stake here. I have no problem with the "budget-cut" cancellations, etc but I did nothing to merit a cancellation.

"How far in advance did they cancel?"
Too late for me to pick up anything else for the dates.

"Why did they cancel?"
For no good reason other than to protect themselves from litigation.

"How much money are you talking about?"
Enough to buy a low-priced Yammie!

"Did they have a right to cancel?"
No right to cancel...strictly a judgment call on their part!

"In your oral contract did you talk about the penalties for cancellation?"
This question has been raised before. I don't believe one needs a cancellation agreement in any kind of a contract unless it is requested by one of the parties.

Mike, these were excellent questions that under more honorable circumstances I would stop and think about. But when someone does me a "dirty," it's in my nature to go toe-to-toe with them, oftentimes cutting my own nose off to spite my face!"

For everyone's information: a contract is formed when a seller (the musician) is selling a service and the buyer (your client) understands fully what that service is and is mentally competant and goes ahead and agrees to pay money for that service. At that point an oral contract goes into effect. As Scott has said, it's easier to prove your case with one that's written, but I once won a court case based on an oral contract only. They are just as legal, only harder to prove. BTW, I think this law differs in each state.

It's so sad that musicians/artists have to go through these ugly episodes. It certainly takes away from the joy beauty of entertaining! Then again I live on the East Coast where they're notorious for this type of behaviour so we half expect it!

I agree you can win with an oral contract but my point, from watching Judge Judy is, the oral contract is for you to play friday for 200 dollars. You didn't play friday, for whatever reason. So I think unless there was a very specific agreement about who, why, when a cancellation could occur and what are the penalties you're out of luck. If you actually showed up for the job and them was told they didn't need you you might have a case. And for future dates you might have to prove you turned down other work on those dates.
I'll bet your wedding contract has a specific cancellation clause.

I have been to court a few times myself, like you, over weddings or private parties but in that case, like I said everything is spelled out in advance.
This is just my opinion I could be wrong, I agree the whole thing stinks.
I wish you good luck. and if you decide to go ahead keep us informed we could all learn from your experience.

[This message has been edited by mikeathome1 (edited 10-02-2007).]

In my one experience with small claims court, it was pretty much a no-contest as we had a credible witness to the making of the oral contract. This may not help you at this point, but it is another consideration when making oral contracts.
Ciao,
Jerry

Yes, there are mitigating factors involved such as "did you try hard enough to find work to fill the date" "was the cancellation well in advance" "were you "eye-balling" the waitress too long (I'd rather get cancelled for that one)," and the list goes on.

BUT....when the dust settles, YOU HAVE A LEGAL CONTRACT! By definition, a legal contract is formed when a buyer, of sound mind, engages the seller to purchase his product or his services and there is no fraud involved. The first step is the "oral" contract and that generally leads, where practical, into the "written" contract.

What is important is that NOT ONE PERSON CAN CANCEL THE CONTRACT....neither the oral one or the written one...both parties have to agree on it. If the seller cancels, then the buyer can sue for "failure to deliver." If the buyer cancels, then the seller sues for monetary compensation.

Of course, that's the way it works on paper, but judges always do what they want to do. You can appeal and win (based on the legal definition of contract law) but it would cost a fortune in transcripts.

Don't forget also.....each state has its own set of statutes (which you can find at your local library). I think if more folks would learn to sue, then there'd be less folks jerking us around like this!

Someone said: "is it worth it all?" I'd really have to think now about: "do I want to win the battle but lose the war?

In 50 plus years I have never been stiffed on a job. Had a few scheduling mix-ups, had a lady die on me and there was no New Years job and played an outside patio job for years where weather sometimes forced a cancellation. On that one, I worked under contract to also do advertising/marketing, so I made allowances for the rain date cancellations.

Three or four clubs went under with no notice, but they didn't have any money, anyway, so going after them would have been a waste of time. That was years ago, when I copuldn't be very selective.

Now, all my work is repeat from people I know. Everything is oral. I invoice after the job and always get paid.

That being said, good contracts are certainly the way to do things, especially if you're dealing with new clients all the time. Most of my friends in the business have had to go to court at one time.

Sadly, I think some of that is just the sign of the times.


Russ

[This message has been edited by captain Russ (edited 10-04-2007).]

Russ.....you got that one right! It's a sign of the times. I've been doing this business for 40+ years and I've never seen anything like the way it is now. People will book, lock you into their back pocket, and then spend the next day making phone calls to find the cheapest musician. Meantime, I entered it in the schedule, made out a worksheet, typed up a contract and mailed it out with a SAE. They don't even bother to call back to say they "found someone else."

This Saturday I'm doing an Oktoberfest. The manager of the CC was dragging his heels with the contract (they figure if they find you to be not that good, they'll hold back some monies). I called him today and told him clearly: "no contract...no music!" I got the contract FAX'd to my within the hour.

No, I never had this problem before. But it's growing into epidemic proportions around here. Remember I'm on the East Coast. I'm not sure what it's like in other parts of the country.

If this is any help to the rest of you, I've taken to telling people on the phone when they book that I'm going to take the initial oral booking over the phone, and advise them I'm recording it. That alone would hold up in court!

I remember the days when business ran by itself and the only thing you had to do was enjoy making music!

Have you spoken to the other party? It seems they cancelled in retaliation, but you say there is no reason for it. If so, why not talk to them and explain that there are no hard feelings over the medical suit and you would like to continue playing for them.

Personally, I feel once you sued them neither you nor they should want to do business together again.

Hi Cassp.....I figured it out already. Do you know when, in the corporate world, you get your walking papers and they escort you to the door right on the spot. Reason being they don't want to take a chance on you sabotaging something (computer files, physical damage, steal something, etc). Well my "former employer" assumed I was going to be mad over losing the suit, and that if I was allowed to play in there again, I would take revenge in some way.

This happens all the time in all fields. I can't half-blame them but it can be really ugly.

Anyhow, I advised them they're welcome to cancel, but I have to be re-imbursed. If the monies are not forthcoming, I'll take them into Small Claims Court again, only this time with a better case.

When you're an artist, this kind of stuff is distasteful and agitating. But bills have to be paid, and they don't get paid by shying away from issues like this. It seems to be a "free-for-all" out there right now, but I'm hoping this is just East Coast conduct!

let us know the final outcome.

[This message has been edited by mikeathome1 (edited 10-04-2007).]

Mark-

Another consideration to have might be the "word of mouth" effect. Many nursing homes are part of a chain and/or have very friendly relationships with other NH facilities around town. I've seen it happen first hand (not to me, thank goodness) where a facility goes sour on an entertainer, drops him, and within a month several other places have done the same.

Many angles to consider before taking a hostile action to a company.

Bill in Dayton


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Bill in Dayton

Just two weeks ago I had a signed contract canceled this year for New Year's Eve. It was 2 hours for $550 - from 7:30 - 9:30 p.m. . I still haven't booked New Years Eve.

It's a nice retirement home. Contract was signed by the ex-Activity Director. She liked me a lot, and hired me every month for the birthday party for about 16 months + the last two New Years Eves. I think that from my being there so often, I stopped being so special.

So the new Activity director at the behest of the assistant (who I didn't have good relations with), canceled with no explanation.

I wasn't told the reason why they canceled. Of course, it's very upsetting for me.

I would take them to small claims court, except for one fact: The two sister facilities of this place hire me a total of 10 evenings for $200/1 hour show.

I am going to put some pressure on them to book me several times next year, but I don't want to put too much pressure on them for the above reason.

Beakybird

Larry (beakybird), what were the TERMS of the contract, and did it include a non-refundable DEPOSIT be paid? All my special event contracts (especially for the highest paying night (Dec 31st) of the year) require a non-refundable (25-50%) deposit be made, which helps to insure clients won't suddenly pull out the way yours did.

Scott

I didn't think of requiring a deposit from an established corporation, and one that I have done business with regularly. I, of course, have done deposits for private parties. This is the first year that I have done contracts. I really didn't have it together professionally before that. This is the first time for me that someone has outright cancelled a signed contract. I've had people tell me that I needed to reschedule, and I don't want to be a jerk, and I usually oblige them.

Anyway, in my case, if I were to take this matter to small claims, I would lose at least $2000 a year of work (for years probably) in order to recover $550. Not smart.

Beakybird