What (exactly) is a "clod"?

I'm soooo frustrated right now! I needed topsoil for some new beds. A sign posted near my daughter's school said "topsoil for sale". So I called them. $150 for 10 yards of non-screened topsoil. Specifically I was told it was NOT clay, but I was warned it might have a few "clods" and pieces of tree root. No problem.

Because of a language barrier problem, the driver dumped it on my (just had it power-washed) driveway instead of on the big expanse of lawn I was trying to direct him to.

Even worse: it's clay, plain and simple. (Anytime you can slice dirt like cheese, it's clay. Anytime you have to use a pick-axe to break it apart, it's clay.)

But they're arguing with me that these 50-100 pound CLUMPS, measuring at least a foot square, and sometimes bigger, - are the "clods" I was warned about. (They did stutter and stammer when I informed them there's a 200 pound mini-boulder in the middle of this pile.)

ARGH!!!! In my mind, a clod is an irregularly-sized clump of soil - typically clay - that you can pick up and heave at something or someone. Generally speaking, it's fist-sized or a little bigger, but definitely not a "chunk" of soil so big and heavy I can't lift it without a back brace or front-end loader.

So - any other ideas? I've called them and asked them (nicely) to come get the rest of this dirt out of my driveway, and we'll call it "even." But they're balking and stalling (obviously - they have their money, and the clean-up is going to cost 'em.)

I'm about ready to get estimates to have someone else bring a front-end loader to remove this dirt, have my driveway re-washed, and another four yards of real topsoil brought in (which I still need) and tell them to quickly choose between coming and getting their dirt, or footing the bill for what it's really going to cost me to fix the problem.

But I'd really like to know - am I out of line by disagareeing with their definition of "clod"? (I think I've got 'em on the hook because they specifically stated the dirt was not clay; but they're hanging onto any argument they can to avoid coming back here.)

Terry, a clod to me is softball sized or there abouts. Anything bigger would be a chunk or a clump. If you can pick it up and throw it, it's a clod.

What payment method did you use? This is a product. Product is unsatisfactory. You have the right to return any product you find unsatisfactory. They delivered an unsatisfactory product, they can come pick it back up. Threaten to call your lawyer, that should make them see it your way.

Or provide all of us with their phone number and we will deluge them with calls, lol.

Terry, I'd call a "clod" anything up to the size of a grapefruit.

clod
n 1: a compact mass; "a ball of mud caught him on the shoulder" [syn: ball, glob, lump, clump, chunk]
http://dictionary.reference.com/search?q=clod

You should be able to throw a "clod"

Legally, since you didn't get anything in writing, you will not be able to force them to foot the bill for the cleanup. It will be your expense.

However, as good business, they should at least reimburse you for the soil you didn't want or offer a replacement with better soil or something. One unhappy customer can spread the word and they lose business.

When I am buying soil, I insist on checking it out first. Like you, I don't want clay. Have plenty of that already and when it's dry, it's like cement. And here, it's dry most of the time.

I made the mistake once of allowing Asplundh to dump a load of "mulch" on my property for me to use in my flowerbeds. (I often get my mulch from tree trimmers anyway.) They dropped their load and OMG it was "strips" of stuff--not finely shredded mulch like the tree trimmer brings me. I never could use the Asplundh stuff. Couldn't even pitchfork it! It was more or less a pile of sticks. They needed to sharpen their blades before shredding the trees. So never again will I do that. My tree trimmer knows what I do with the mulch and he is careful not to bring me any poison ivy or diseased trees and he brings only finely shredded stuff. Ahhhh, I just love it when he's been trimming Bradford Pear trees. The fresh mulch smells so devine!

I love your definition of a clod--something you can pick up and hurl at someone. A clod for a "clod", yes? Get the guys back out there and fling clods at them... No, wait, don't do that, there's probably a law against it. LOL

BC

Thanks, all. I was just wondering if I was nuts for "assuming" a clod was a lot smaller than these. You're right that I can't "make" them to come clean it up, but I sure can let them know I am thinking of filing a claim in small claims court if that will help motivate them a little.

(Please understand, I am soooo not a litigious person - my one and only experience with any lawsuit was over 10 years ago when the would-be buyers of our first house took us to small claims - and that's a whole 'nother story.) But after staring at this mound of mud that's taking up part of my driveway and thanks to the rain we've had, is slowly oozing into one huge mudball - I'm just frustrated enough to at least consider a claim - and if that's what it takes, then I might as well throw in all the damages I'm incurring as a result of this mess.

You have a verbal contract, and they verbally misrepresentated the product they were selling. If you wrote a check, stop payment on it. Otherwise, start quoting them from this:

Source: Tennessee Code : TITLE 47 COMMERCIAL INSTRUMENTS AND TRANSACTIONS : CHAPTER 2 SALES : PART 7 REMEDIES : 47-2-714. Buyer's damages for breach in regard to accepted goods.
Terms: unsatisfactory product (Edit Search) (Search lexis.com®)


47-2-714. Buyer's damages for breach in regard to accepted goods.

(1) Where the buyer has accepted goods and given notification (§ 47-2-607(3)) he may recover as damages for any nonconformity of tender the loss resulting in the ordinary course of events from the seller's breach as determined in any manner which is reasonable.

(2) The measure of damages for breach of warranty is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted, unless special circumstances show proximate damages of a different amount.

(3) In a proper case any incidental and consequential damages under the next section may also be recovered.

[Acts 1963, ch. 81, § 1 (2-714).]

47-2-715. Buyer's incidental and consequential damages.

(1) Incidental damages resulting from the seller's breach include expenses reasonably incurred in inspection, receipt, transportation and care and custody of goods rightfully rejected, any commercially reasonable charges, expenses or commissions in connection with effecting cover and any other reasonable expense incident to the delay or other breach.

(2) Consequential damages resulting from the seller's breach include:

(a) any loss resulting from general or particular requirements and needs of which the seller at the time of contracting had reason to know and which could not reasonably be prevented by cover or otherwise; and

(b) injury to person or property proximately resulting from any breach of warranty.

[Acts 1963, ch. 81, § 1 (2-715).]



http://198.187.128.12/tennessee/lpext.dll?f=templates&fn=fs-main.htm&2.0

Take plenty of pictures to take to court, just in case. You can be very successful in small claims these days. My daughter had a problem with movers and went to a free class on how to file small claims. She won and when they didn't pay; took them back into small claims and the judge made them pay.

It will be a little work but if you don't get their wrists slapped, they will do it to someone else. With the pics it would be obvious that you were not needing clay.

Can you find the sign and take a picture of that also?

i say the guy that sold you the clay is a CLOD!
good luck

LOL I agree, notmartha

I hate confrontation but at this point in my life, when they delivered it, I would have inspected it before it came off the truck. That would have saved you so much grief. And dumping it in the wrong place . . . aurgh! It will be a pain for you, Terry, but don't let this go.

Although, I must say, there have been times when I didn't let it go . . .wished I had. Sometimes it's best to cut your losses.

You can act on principal but it can take a big piece of you.

I would have loved to inspect it first - but it was on a HUGE dumptruck. Short of dragging out a tall ladder and climbing up 10 feet to jump in, that wasn't possible.

(Trust me, I've kicked myself a million times for not simply refusing to write a check or stopping payment when I first tried to stick a shovel in it - that would have been the quickest way to get some action from them.)

And you're right - there are some issues worth fighting for, and most others should be let go. I'm typically willing to let things roll off, but the longer I stare at this mess, the more it gets "my goat".

I understand your grief.

I once bought two 10 yard loads of topsoil. Both were beautiful and great soil. One load was even enriched with some horse manure from the track. The place had bought a field and were scraping the topsoil layer off and it was really good.
So it really does pay to check the pile out first and talk to the workmen.
I got a pickup load of sand recently and the worker knew where there was a pile of extra nice sand and got that for me. Again, it pays to go in person first.

Hope you get "satisfaction".

Rooting for yaa!

I would seriously caution you to not buy anything that has not been screened unless you are filling in a pool or something. Otherwise you are just getting what has been scooped off the top of somewhere else. Even when it is screened you can get a few oddball things in it. There is also no guarentee you are getting "good" topsoil. I'd like to know where they got it with clay balss that big! I think I spend too much time with dirt. LOL

Terry, I would at least tell them that if they don't come and pick up the "dirt" that they left, that you will report them to the Better Business Bureau. If may or may not work, but it can't hurt.

For what it is worth, you are not off base to expect better than you received. It sounds like they are passing off fill dirt as topsoil - - not the same thing at all.

Maybe you can take up pot making with all that clay?

In my opinion, a clod is something smaller than a baby's head...and if your 'topsoil' clumps into anything bigger...it's not topsoil.

Topsoil should be fairly loose and friable...this would be the track that I would take....it's not topsoil...regardless of the 'clod' size.

A topsoil clod should crumble with minimal force...if it slices and stays together....it's clay.

What you got was fill dirt, and if the advertisers do not know the difference...they should get an expensive education.

Go Melody! :)

Hey Terry, how about an update? What did you end up doing or deciding?

Is it possible they don't have a dime in their pockets to be sued for? If they are living hand to mouth it might be better to cut your losses (energy wise) and mark it up to a $ (whatever you spent) lesson.

Sometimes we have to just let go mentally and get on with our lives.

I lost $50,000 on a bad real estate investment with crooks and was so upset. My husband was so calm about it and I said, " why aren't you upset the way I am?"

He said, "The money is gone, we can't change it, why ruin the quality of our lives being in turmoil over it. Put it behind you and chalk it up to being an expensive lesson" (think I'll keep him)

Well, when I started getting the runaround (he said I needed to talk to "the boss", which turned out to be his dad, who after a couple phone calls told me that it's really his son's business, and he just "helps him out with these things" hmmmmmm), I started doing some checking.

After I got shuffled back from dad, I got the sob story about how he's just a guy with a dump truck, and doesn't really have any way of picking it up. He didn't like my suggestion that he rent front-end loader from Home Depot, which is a mere 4 miles away.

What I've found is he has a physical location in Nashville, which is called "[name] Landscaping Management", and the building is shared with another business called "[name] Irrigation and Lighting Company." The second company is a member of the BBB, with a contact name and number to call before filing a complaint with the BBB, which I've called and gotten no response. My guess is it's a co-owner arrangement, or - at the very least - his "poor me" song and dance is bogus because a landscaping management and irrigation/outdoor lighting company should have access to a front-end loader, or know someone in the trade they could borrow one from.

My plan is to send a registered letter to him at the busines address tomorrow, demanding that he remove the dirt by Dec. 2, 2005, or face a suit in small claims court for his breach of seller's contract. At the same time, I'm going to go ahead and file a complaint with the BBB, now that he's resorted to dodging my phone calls (half a dozen messages have gone unanswered.) I figure if my letter doesn't get his attention, then the second whammy of a complaint filed with the BBB will hopefully get him to take me seriously.

I've given him a simple choice: he can either come remove the remainder of the dirt and rock, at his expense OR I'll clean up the mess, and sue him for whatever it costs me to have it removed, the driveway re-cleaned, and fresh (real) topsoil brought into finish the projects I need dirt for. Plus the original $150 since what he sold me wasn't what he delivered. All-told, I'm guessing I'm looking at a cash outlay of ~$500, plus the original cost of the soil.

I'll have plenty of photos and I'll take a soil sample to the UT extension office to have it analyzed before we remove the dirt. Then I'll save all my receipts and proceed to small claims. Shaking my head - I had really hoped he would have the integrity to own up to an honest mistake, and make good on it. It's people like that who make it hard on other small business owners.

You go, girl!

Down here a clod is about the size of a large boot. Thus the saying "boy that is some clop hoppers he has on." Meaning a large pair of boots or shoes. Seems like you are doing what I would do.

Terry. Don't forget to take down the add or if it is a big sign, take a picture of it to take with you when you go to court. If you show the Add/sign that claimed it to be topsoil to the court, its not gonna be their word against yours. GOOD LUCK.
Janett

One more idea - I had a run in with a crooked auto dealer a number of years ago. When I threatened to
sue, the owner told me I was just giving that lip service. I called the parent company - nothing they could do!
I called BBB and that did nothing. I called the Attorney General's office (PA) and they looked into it. I got
a check reimbursing me the original bill and my expenses in dealing with them. See if your state has
a " Consumer Affairs" type bureau (if the BBB & letter don't work).
Tam

Thanks, all. Tayson, my receipt specifies "topsoil' so I *think* that should add to my claim that I was promised one thing, but delivered another.

I filed the claim with the BBB, printed off my copy of it, and sent his letter via certified mail. I'm hoping he'll have a change of heart over the holiday, and decide it's not worth the trouble or risk of losing in small claims court.

Terry, don't know how this would work in the US, but I've found it very helpful in that sort of situation to ask if he'd like to see himself on the 6 o'clock news??
( you could ask his dad how he'd like to see his business on the news as well?)
This has worked for me in several different situations, dealing with gov't, dealing with your sort of mess - something about that kind of publicity seems to light a fire under people, and the news loves those kind of stories - poor innocent kind-hearted trusting DG-er being taken advantage of by blankey blank business person...
best of luck!

They do that here with channel 7 news all the time, its been a while since I watched that channel but they used to actualy advertise that if you had a problem to get in contact with them so they could help you solve it. I wish I had thought of that 2zues.
Terry it could be worth at least a phone call to your local news channel, you could talk to them about it but you dont have to go thru with it unless you really feel it would help.

;Terry so sorry about your top soil-clods issue. I have been out of town for two weeks and thie was first I had read about your problem. Good topsoil is pretty hard to come by here in my area. I haave never ordered-bought any but have seen piles of what was called topsoil and I sure wouldn't want it.

I had a problem with the fellow who drilled my water well last year , went to several places to try to resolve the problem, BBB, Newspaper, Attorney General's office. My best help turned out to be my attorney DD and DIL, between them I received enough money from the crooked well driller to pay this fall for another well driller to redrill and hhopefully next spring will have sufficient water for my garden.

Good Luck. Too bad you couldn't have paid with a Credit Card, but I'm sure your crooked people weren't accepting CC.

DonnaS

I had a huge amount of top soil brought in after some construction.
I pulled thistles all summer that first year. Better than those huge
"clods" but annoying none-the-less.

Let us know how you make out with these guys.
Tam

Just checking in to see what happened with the clay clods.
Sharon

Terry.........how is it going with your clod problems........we want an update :0))
Janett

It's pretty much what I expected - he's ignored my letter and the Better Business Bureau's inquiry (I guess he's willing to have a black mark on his record), so we're resigned to cleaning it up ourselves and determining if it's worth taking him to small claims court over the expenses we've incurred, and will incur to finish the project.

GRRRRRR

Did you check if there's a Consumer Protection Agency in Tenn? I had best luck through
them (in Pa) 20 yrs ago when I had a run-in with a crooked car dealership Nothing else worked.
Tam

Terry- I do feel for your predicament. Reading over all these suggestions, I think the one that would get the most attention would be to contact a TV station, reporters love local stories like this.
As far as the BBB, I beleive they pretty much only collect complaints - then IF anyone calls to check on a company, they have a record of how many complaints have been filed against them. They really don't DO anything. I'm not sure, but I think that companies need to be "Members" of the BBB to even have a record.
After all this time, you have probably made a dent in that pile, but if there is still a substantial bit to show - I'd call your local TV station. The bad publicity would hurt their business more than anything, and many times there is a follow up story that tells that the mess has now been rectified and restitution made..

I will NEVER EVER get unscreened top soil again from ANYONE unless I SEE EXACTLY what I am getting first! I got kinda the same thing Terry did one time. The guy who was selling it to me gave me a line, told me what he was selling was "just as good as screened," blah, blah, blah. Phooey! I will only EVER believe that if I see it with mine own two eyes. @@

Sorry you had such an experience, Terry.

I had the garbage soil dug out from all around the foundation of my house last season, and I made GOOD AND SURE I KNEW what was going back in the ditches. It is all black top soil mixed with composted sawdust and manure. Great stuff! And I had them dig the soil out to 15 to 18 inches down. They only wanted to dig down 6-8 inches. I said, "What good is that? I don't want to hit any clay when I'm digging a hole to put in shrubs, perennials or annuals.

One really has to put one's FOOT DOWN with nearly all of these companies to get them to do it the way one wants. They don't even want to cooperate when they know you are going to pay extra.

In the case of the soil around the foundation of my house, I knew I had only ONE CHANCE to get it done right. If they'd put cloddy junk in, I would not have paid to have them dig it out again and put in new soil.

This message was edited Dec 15, 2005 7:35 PM

If you ever decide to sell that house, be sure the real estate agent knows about your great
dirt! I still remember the solid clay of my first place. A new town house built on scraped
subsoil. Nothing like this 200 yr old farm. I can't imagine buying a new house again and
having to deal with the awful "soil" contractors leave you.

Thanks for letting me know, Tammy. you are right! It will be a selling point for some people! Out here in my area it is absolutely heart-breaking to see GOOD, RICH, BLACK, GROW ANYTHING topsoil being put under FOREVER by shopping malls and subdivisions! It's not even "top"soil. It goes down quite a few feet! It it just completely cost prohibitive to dig it up, take it somewhere else and put garbage soil in its place. So it just gets covered over, never to be accessed or used again!

In the cases you describe, I do believe contractors often sell the top soil and replace it with garbage soil. The kinds of junk one can find in the soil next to the house, too. The contractors and sub-contractors just drop their soda cans, cigarettes, wood and metal scraps, wires and anything else that is junk into the area around the house, and then it gets covered over with garbage soil.

You are so right. I was helping a friend dig out her elephant ears a few weeks
ago and found they were planted in this tan sluicy stuff. It was the consistancy
of pudding. I commented on it and she said it was something leftover from the
renovations they did 15 yrs ago. I just wonder what it was! She said she just
didn't know enough to say "don't dump that stuff". That's worse then soda cans.