10 La. 575 | La. | 1837
delivered the opinion Of the court.
The plaintiff claims of the original defendants, as his vendors and warrantors, a diminution of price of a house purchased from them, on account of a latent defect in one of the walls, in consequence of which it is alledged the house fell. The original defendants cited in as warrantors, their vendors, Haines & Geddes, and all the parties are before this court, by an appeal from a judgment, condemning Gray, Durrive & Co. to pay the costs of repair, and Haines & Geddes to re-imburse to them that amount, With the costs Of suit.
The counsel of Haines and Geddes contends, that the court below erred: 1st, because there is no cause of action laid in the petition, to entitle the plaintiff to recover, 2d, because the testimony shows that there was no such redhibitory defect in the thing sold, as will entitle the plaintiff to judgment: 3d, prescription applies, when all parties were equally informed of the condition of the object of sale.
I. The petition alleges, that the defendants sold the house with full warranty, and that a part of it had fallen in ruins, on account of the badness of its construction. Taking these allegations as true, it appears to us a cause of action ° arc is set forth, and that the plaintiff would be entitled to recover, unless it should appear either that the defect of the wall had been declared at the time, or that it was apparent.
II. The evidence satisfies us, as it did the court of the first instance, that there was a defect in the wall, which entitles the plaintiff at least to a diminution of price. That defect was not declared at the time of sale, and in the absence of all proof of any fortuitous event or extraordinary cause, we tbink the court was warranted in conclusion that the house fell in consequence of that defect. The defect is shown not to have been apparent, but was concealed by planks, and the insufficiency of the foundation was not obvious.
T . , . . ... . III. I he plea of prescription cannot avaiL the warrantors. Haines & Geddes, it is shown, were informed of the probable insufficiency of the wall, which was an old one, to • ,1 , -i t ... i sustain the new building which was erected upon it. I he architect communicated to them his opinion to that effect, but they persisted in their plan, and when selling, they failed to disclose the defect. Louisiana Code, 2512.
The court below adopted, in our opinion, a correct standard in diminishing the price, to wit: the costs of ° 1 ’ repetir»
Gray, D arrive & Co., in their answer, claim damages agpinst the appellants for a frivolous appeal; although, we think they have no just cause of complaint, and are satisfied with the judgment, yet' the case is novel, and their counsel has presented their views of their legal rights, with so much ingenuity and plausibility, that we cannot suppose their sole object in prosecuting the appeal was delay.
It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.
