Hunter v. MayfieldHunter v. Mayfield
Jackson B. Davis, Shreveport, for appellee.
AYRES, Judge.
By this action, a sequel to Johnson v. Hunter, La.App., 88 So.2d 467, plaintiff seeks reimbursement of damages recovered of him by Johnson. Plaintiff, a building contractor, constructed for his own account and for sale a residence in the City of Shreveport, which he sold to Johnson. Pursuant to a verbal contract, the plumbing was installed by defendants, who furnished the materials and fixtures and performed the necessary labor. Following his occupancy of the residence, Johnson sustained damages due to defective plumbing and/or its defective and improper installation. In the aforesaid action Johnson recovered of plaintiff $630.86, with legal interest from judicial demand and costs incurred in that proceeding, the aggregate of which is $812.14. This sum, plus $500 as attorney‘s fees incurred in the defense of the aforesaid action, plaintiff seeks to recover of defendants herein.
From a judgment in favor of plaintiff, as prayed for, except as to the attorney‘s fees, defendant has appealed. Plaintiff having neither appealed nor answered defendants’ appeal, his claim for attorney‘s fees may be considered as abandoned. Neither have the defendants urged their exception of no cause and of no right of action in this court and, consequently, said exception is likewise considered as abandoned.
As to the merits of the issues in this controversy, a detailed statement or discussion of the facts is deemed unnecessary as they were fully discussed in our opinion in the former case. Neither does it appear that further amplification could serve any beneficial purpose, particularly in view of the fact that the present record discloses no material difference in the facts of the two cases as would warrant or justify a departure from the conclusions heretofore reached as to the fault or cause of the damages sustained. We heretofore stated:
“It is clear from the proof in this case that the damage complained of was caused by the defective commode and/or its installation. A proper installation would have included an inspection to determine that the mechanism would properly function and automatically shut off the flowing of the water through the intake pipe before the bowl overflowed. Whatever inspection was made, as contended by defendant, did not disclose the imperfection which caused the damage. Such inspection was, therefore, inadequate for the purpose or to forestall the event or calamity which followed. The commode was, therefore, not free of vices and defects at the time the house was sold to plaintiff by defendant.” 88 So.2d 467, 471.
It, therefore, follows that defendants breached their contract. Their obligation under the contract extended to whatever is incident to such contract and included, of course, is the obligation to complete the work contracted in a workmanlike manner so that the object contracted will properly function and render the service contemplated by the contract. One of the incidents of this obligation is that the party who violates his contract is liable for the payment of damages which the other party sustained by his default.
Neither do the facts established in the present record justify or warrant any departure from the conclusions reached as to the quantum of damages. The record
Finally, the defendants plead that contributory negligence on plaintiff‘s part bars his recovery. Of the various grounds upon which this plea is predicated, only one needs be noticed. All others are apparently abandoned. It is contended that plaintiff knew of the failure of the commodes in the residence to properly operate prior to the occasion when the rooms overflowed and failed to give notice to defendants of that fact. This plea is without merit. The burden of proof is upon the parties who plead contributory negligence to establish the facts upon which such plea is predicated. There is no conclusive proof or showing by a preponderance of the evidence that defendants or their employees were not notified of the mal-functioning of the plumbing involved. Mrs. Johnson, wife of plaintiff‘s vendee, notified plaintiff of that fact, who first testified that he informed defendants’ employee, then employed in the plumbing of a residence adjacent to the one where plaintiff was working. Although plaintiff testified it was his custom and practice to relay such complaints to the proper parties, he had no independent recollection of giving particular notice in the instant case. However, defendants’ employee was not produced as a witness and no explanation was given therefor. Neither did defendants produce as a witness Mrs. Mayfield, who, the record discloses, was in charge of defendants’ office and who would more likely have received the complaints or had knowledge thereof. Pretermitting the question as to whether a failure of plaintiff to notify the defendants, as urged, would constitute such contributory negligence as would relieve defendants of their responsibility under their contract, it could only be concluded that defendants have not sustained their burden of proof, particularly in view of the fact that the employee aforesaid was not produced as a witness.
We find no error in the judgment appealed and, accordingly, it is affirmed at appellants’ cost.
Affirmed.
On Rehearing
GLADNEY, Judge.
This rehearing was granted because of the insistence of appellant‘s counsel that we failed to accord proper weight to evidence adduced on the trial of this case, but instead relied strongly upon our findings in Johnson v. Hunter, La.App., 88 So.2d 467.
The contention presupposes we went beyond the record for our findings of fact, but the assumption is unwarranted. The key witnesses in this case and in Johnson v. Hunter were the same and their testimony related to subject matter which brought on the institution of both lawsuits. Nonetheless,
It is further argued on behalf of Mayfield the record does not contain proof Hunter gave Mayfield timely notice of the unsatisfactory condition of the plumbing and had he done so, the damage would not have occurred. Counsel then reasons that because of this omission of Hunter, Mayfield should be exonerated. The defense is actually one in the nature of a plea of contributory negligence, which is not specially pled, but even had it been, we would have determined it improper. In brief in support of the application for a rehearing appellant‘s counsel now concedes the action chosen by the plaintiff is by its nature ex contractu. With this we agree as the allegations of plaintiff‘s petition and the prayer thereof clearly demonstrate. Legal foundation for the action is to be found in the following articles of our
“Art. 2769.
“If an undertaker fails to do the work he has contracted to do, or if he does not execute it in the manner and at the time he has agreed to do it, he shall be liable in damages for the losses that may ensue from his non-compliance with his contract.”
“Art. 1930.
“The obligations of contract (contracts) extending to whatsoever is incident to such contracts, the party who violates them, is liable, as one of the incidents of his obligations, to the payment of the damages, which the other party has sustained by his default.”
The effect of our decision in favor of appellee under the authority of these Codal articles is to award damages for losses which ensued by reason of appellant‘s noncompliance with his contract.
We hold the argument as to Hunter‘s obligation to notify Mayfield, to be unsound upon several grounds. First, it should be recognized that forasmuch as this is an action ex contractu Hunter was not required to give Mayfield any such notice. The imposition of an obligation of this kind could result only from a stipulation in the contract between the parties, and there was no such provision. An “action on contract” flows from the breach of a special obligation. In this respect it differs from an “action in tort” which flows from the violation of a general duty. The distinction is pointed out in Parro v. Fifteen Oil Company, La. App.1946, 26 So.2d 30, 32.
Secondly, and assuming, arguendo, the law imposes a duty upon Hunter to inform Mayfield of defects existing in the plumbing work before damage might occur, we find every reasonable effort was made to inform Mayfield the commode was not properly working in the Johnson home. Furthermore, undoubtedly the stoppage of the sewer line was a contributing cause of the damage, the existence of which stoppage could not have been anticipated by Hunter, and it became manifest only after the damage had occurred.
Thirdly, we opine the burden of proof was with Mayfield to show he did not receive the notice he thinks he was entitled to receive. He has taken the position the burden of proof as to this fact rested upon Hunter, and contends that had the court so imposed this burden Hunter would have failed in making out his case. Although we have heretofore pointed out that Hunter was not under legal compulsion to give such notice, and, that even if we assume such duty rested upon Hunter, the evidence disclosed reasonable attempts were so made, we go still further, in order to point out the import of
A further protest is lodged against our decision. Counsel says his client should not be held responsible as the record shows Mayfield had been away from the job for several weeks before any question of defective plumbing occurred, and, therefore, the court is making him the guarantor of the installation for an indefinite period. We must point out,
“The defense of waiver is a special one and the burden of proof is on the defendants to show that the plaintiff had knowledge of the defects in construction and that she intentionally waived same.
“The courts of this state have held that an owner is not estopped from claiming damages for the breach of a building contract by taking possession and moving into the building. The failure of the contractor to construct the building in accordance with the plans and specifications was a violation of the contract and the taking of possession of the premises by the plaintiff can not be considered as a discharge of the defendants’ liability. Lobdell v. Parker, 3 La. 328, 331; Morton v. Pollard, 9 La. 174; Overton v. Simon, 10 La. Ann. 685; Miller v. Stewart, 12 La. Ann. 170; Nicholson v. Desobry, 14 La.Ann. 81; Conery v. Noyes, 17 La.Ann. 201; Gordy v. Veazey, 25 La.Ann. 518; Levy v. M. Schwartz & Bro. etc., 34 La.Ann. 209; Borrosky v. Hill, Harris & Co., Inc., 1 La.App. 431; Payne & Joubert v. Amos Kent Brick & Lumber Co., 110 La. 750, 34 So. 763; Police Jury of Parish of Vernon v. Johnson, 111 La. 279, 35 So. 550; Di Franco v. Ascani, 13 La.App. 2, 127 So. 76.”
Concluding, and by way of summarizing our findings, after review of the record and reconsideration of our former opinion herein, we hold: first, the evidence adduced upon the trial of this case fully substantiates the judgment as reflected in our original decree; second, the contract between Hunter and Mayfield did not impose upon the former the duty of calling Mayfield‘s attention to defects in his workmanship before injury occurred by reason of the defective workmanship; and third, that since the burden of proof rests upon the party who seeks to be exonerated from the execution of his contract, it was incumbent upon appellant to show by a preponderance of the evidence circumstances which would have exonerated him from the effects of his faulty workmanship.
Our original decree herein is reinstated and made the judgment of this court.