Millin v. DawsonMillin v. Dawson
The plaintiffs purchased the mobile home from the Dawson dealership on December 2, 1977, for $14,859.08. During their inspection of the home prior to closing of the sale, they spotted almost all of the defects complained of in this litigation. These defects were typed on to the purchase agreement as items to be corrected by Dawson, presumably at or near delivery. One major defect went unnoticed by the Millins in their presale inspection: a quarter-inch seam in the vinyl flooring rippled across the width of the home in the kitchen-living room area.
During delivery of the home to the Millins’ property the towing truck became stuck in a muddy ditch after backing the mobile home into a fence surrounding the plaintiffs’ lot. As a result of this incident, the trailer tongue was bent. The tongue has not been repaired.
Upon taking delivery of the trailer, the Millins noticed that few, if any, of the defects they had noticed had been repaired by Dawson. They also noticed the floor seam for the first time. Attempts to have the defects repaired were unsuccessful, and the Millins brought this suit.
The fact that the mobile home purchased by the plaintiffs contained a number of defects is not seriously questioned. The trial judge found that, while the defects were not sufficient to merit rescission of the contract because of redhibitory defects, they were of sufficient substance to allow the plaintiffs a reduction in the purchase price, as well as damages for repair of the various defects. He ruled that Dawson and Celtic Corporation would be solidarily liable for $400.00 to repair the seam that developed in the mobile home floor. On Dawson‘s third party demand against Celtic, the court cast Celtic for the $400.00 floor seam damage charge, apparently concluding that the floor seam was a manufacturing defect. Additionally, the court cast Dawson alone for $1,338.50. Though we have no indications from the written reasons or from the judgment as to how the trial court arrived at the damages, our calculations indicate that he assessed Dawson $1,000.00 for a reduction in purchase price and the remaining $338.50 for the following repairs: leveling, $25.00; bleaching and touching up the stained ceiling tiles, $25.00; repair of a hutch and the cabinet, $9.00; repair of leaks, $12.50; repair of exterior seams, $55.00; repair of the hot water heater door, $12.00; repair of the tongue, $100.00; and repair of panels, $100.00.
Finally, the trial court cast Dawson alone for $1,200.00 in attorney fees for the plaintiffs’ counsel. Dawson was also required to bear the costs of the case.
On appeal Dawson claims the trial court erred in denying its third party demand against the manufacturer for all sums that Dawson was required to pay to the plaintiffs; that the court erred in not allowing Dawson to recover the attorney fees it was required to pay to the plaintiffs and the attorney fees of its own attorney; that the trial court erred in awarding the plaintiffs $1,738.50 for damages and reduction in the purchase price; and that the trial court erred in assessing the costs against Dawson alone.
The plaintiffs answered that portion of the defendant‘s appeal which sought a reduction in the damages, seeking instead to have the trial court‘s award affirmed. The plaintiffs also appealed and asked for attorney fees for answering the appeal and handling other appellate matters in this case.
Celtic Corporation seeks to have the $400.00 judgment against it reversed. Celtic‘s primary argument is that Dawson‘s president was aware of the floor seam before the sale was consummated, but did not inform the Millins of this defect. As a result, Celtic claims that Dawson‘s right to indemnity from the manufacturer under
DAMAGES
The trial court‘s apparent conclusion that the floor seam was a redhibitory defect is supported by the evidence in the record. The floor seam was a hidden defect which went unnoticed by the plaintiffs until the trailer was delivered. However, the seller had express knowledge of its existence prior to the sale and the manufacturer was presumed to have knowledge of its
Celtic‘s claim that the manufacturer should escape liability for the defects if the dealer learns of the defects prior to the sale to the ultimate customer is untenable. The fact that the seller also knows of the defects in the thing that the manufacturer has manufactured has no effect on the relationship between the dealer and the manufacturer. Under
We disagree, however, with the trial court‘s damage assessment against Dawson. As noted above, the court found Dawson solely liable for $1,338.50, with $1,000.00 of that figure representing a reduction in the purchase price. The items of damage for which Dawson was cast were all apparent defects for which the action in redhibition is not allowed.
BUYER‘S ATTORNEY FEES
Under
VENDOR‘S ATTORNEY FEES
Under the holding of Porche v. Robinson Brothers, Inc., supra, the vendor in a redhibition action is allowed to obtain attorney‘s fees from the manufacturer who is responsible for the redhibitory defects sued upon. We find that Dawson should be allowed a judgment of $600.00 against Celtic for the attorney‘s fees Dawson incurred in defending this litigation.
DECREE
Therefore, for the above and foregoing reasons, the judgment of the trial court is affirmed in part, reversed in part, amended and recast as follows:
IT IS ORDERED, ADJUDGED and DECREED, that there be judgment on the main demand in favor of plaintiffs, Thomas D. Millin and Cheryl R. Millin, and against defendants, Bob Dawson‘s Garden Homes, Inc., and Celtic Corporation, in solido, for the sum of Four Hundred and No/100 ($400.00) Dollars, together with the legal interest from date of judicial demand until paid, plus attorney‘s fees in the sum of One Thousand Seven Hundred and No/100
IT IS FURTHER ORDERED, ADJUDGED and DECREED, that there be judgment on the main demand in favor of plaintiffs, Thomas D. Millin and Cheryl R. Millin, and against defendant, Bob Dawson‘s Garden Homes, Inc., for the additional sum of Three Hundred Thirty Eight and 50/100 ($338.50) Dollars, together with legal interest from date of judicial demand until paid.
IT IS FURTHER ORDERED, ADJUDGED and DECREED, that there be judgment on the third party demand in favor of third party plaintiff, Bob Dawson‘s Garden Homes, Inc., and against third party defendant, Celtic Corporation, for the sum of Four Hundred and No/100 ($400.00) Dollars, together with legal interest from date of judicial demand until paid, plus the additional sum of One Thousand Seven Hundred and No/100 ($1,700.00) Dollars, together with legal interest thereon from November 15, 1979 until paid.
IT IS FURTHER ORDERED, ADJUDGED and DECREED, that there be judgment on the third party demand in favor of third party plaintiff, Bob Dawson‘s Garden Homes, Inc., and against third party defendant, Celtic Corporation, for the sum of Six Hundred and No/100 ($600.00) Dollars, together with legal interest from date of this judgment until paid.
AND IT IS FURTHER ORDERED, ADJUDGED and DECREED that Bob Dawson‘s Garden Homes, Inc. and Celtic Corporation pay equally all costs of this proceeding.
AFFIRMED IN PART, REVERSED IN PART, AMENDED AND RENDERED.