198 So. 394 | La. Ct. App. | 1940
This is a suit for $185.45 for paint, stain, varnish, sizing, etc., sold by plaintiff to defendant, less a credit of $65.91 for materials returned, leaving a balance due of $119.54.
The defense is that the paint and other materials sold were defective and unfit for the purposes for which they were purchased. Defendant, assuming the position of plaintiff in reconvention, averred that he had expended the sum of $85 for labor in applying plaintiff's defective product, and that he would be required to expend $150 more to remove the same, thus damaging him to the amount of $235 for which he claimed judgment.
The trial judge, in a lengthy written opinion, reached the conclusion that the paint was defective and rejected the demands of plaintiff. He also rejected defendant's reconventional demand for the reason that the proof offered by defendant was insufficient to warrant an award. Plaintiff has appealed.
The defendant not having appealed from the judgment dismissing his reconventional demand and not having answered the appeal, we are not concerned with that part of the judgment dismissing defendant's reconventional demand, and the only question presented to us is the correctness vel non regarding plaintiff's demand and the defense thereto.
Civil Code, Article
We agree with the trial judge that the evidence shows, that after the paint was applied on defendant's building it did not hold up, but cracked and roughed off soon after its application. That fact is admitted by plaintiff's agent who saw the building shortly after the paint was applied. It seems, then, that the determination of the case hinges on whether failure of the paint to hold up was due to its misapplication by the defendant or to a latent defect in the paint; in the former case there should be recovery and in the latter there should be no recovery.
It is shown that the cans containing the paint contained instructions as to how the paint was to be applied. Mr. Dunn, the agent of the plaintiff, examined the building and measured the concrete floors and figured the quantity and kind of paint necessary to be used. It is shown that the paint should be applied on concrete after it is dry, and there is some dispute as to whether or not defendant's concrete floors were dry at the time the paint was applied. However, as stated by the trial judge, three witnesses, to-wit, the defendant, the painter and the contractor, all testified that the concrete was dry and all surfaces were in proper condition for the application of the paint when it was applied, and it appears that their testimony constitutes a preponderance of the evidence on that point. It is also shown by preponderance *396 of the evidence that the paint was used and applied in accordance with the directions on the cans.
It is evident, since the paint was properly applied to surfaces which were dry and ready to receive it, that its failure to hold up was caused by some defect in the paint. We cannot find manifest error in that conclusion of fact reached by the lower court, and we therefore affirm the judgment below.