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).]