Schenck v. Capri Const. Co., 2430

• Decision Date: 09 January 1967
• Docket Number: No. 2430,2430
• Parties: Mr. & Mrs. Joseph J. SCHENCK v. CAPRI CONSTRUCTION CO., Inc.
• Court: Court of Appeal of Louisiana — District of US

Page 378

194 So.2d 378

Mr. & Mrs. Joseph J. SCHENCK v. CAPRI CONSTRUCTION CO., Inc.

No. 2430.

Court of Appeal of Louisiana, Fourth Circuit.

Jan. 9, 1967.

Rehearing Denied Feb. 13, 1967.

Huddleston, Hurley, Senter & Davis, Albert J. Huddleston, New Orleans, for plaintiffs-appellants.

Harry A. Burglass, Metairie, for defendant-appellee.

Before McBRIDE, SAMUEL and CHASEZ, JJ.

SAMUEL, Judge.

On August 29, 1965 plaintiffs entered into a written contract with the defendant for the construction of an additional room or den to plaintiffs' home in Carolyn Park, Parish of St. Bernard, for the sum of $2,260, payable $800 down with the balance due on completion of the work. The contract provided that should plaintiffs cancel the same before the commencement of work they agreed to pay defendant 20% Of the amount of the contract as damages and 10% Of the contract amount as attorney's fees if placed in the hands of an attorney for collection; if plaintiffs cancelled the contract after commencement of work, they agreed to pay defendant the same damages and attorney's fees and, in addition, defendant's actual expense in labor and materials to the time of the cancellation. The contract also provided that plaintiffs would do the painting, plumbing and electrical work involved. Because some plumbing work was necessary before the concrete slab for the addition could be poured, the litigants agreed that such pouring would be begun by the defendant after plaintiffs had completed that necessary plumbing work.

Plaintiffs borrowed $800 and paid the same to the defendant at the time, or very shortly after the time, the contract was signed, defendant laid the forms for the slab, and plaintiffs began the plumbing work necessary prior to the pouring of the slab. Plaintiffs completed that plumbing work on September 8, 1965. On September 9, 1965, before plaintiffs informed defendant of such completion, Hurricane Betsy struck the area.

As a direct result of the hurricane plaintiffs' home was inundated by flood waters to a height of approximately 5 feet 7 inches and the water did not recede for a period of several days. Some of the sheetrock, flooring, windows, doors, etc. and most of the contents of the home, including furniture and clothing, were either destroyed or severely damaged. Plaintiffs then sought to cancel the contract, refused to permit any further work thereunder and requested the return of their $800 deposit. Defendant refused the request but offered to apply the deposit to repair by defendant of some of the storm damage. Plaintiffs refused this offer, preferring to apply the $800 to the cost of materials and do the work themselves, and instituted this suit by which they now seek a return of the deposit less the expense incurred by the defendant in laying the wooden forms for the slab. Defendant reconvened for liquidated damages, attorney's fees and expense as provided by the contract and, alternatively, for specific performance.

Judgment was rendered in the trial court on the main demand in favor of defendant and against plaintiffs, dismissing the latters' demand and, on the reconventional demand, in favor of the original defendant and plaintiff in reconvention and against the original plaintiffs and defendants in reconvention, in the amount of $741.82 (consisting of $63.82 in stipulated expense, $452 in liquidated damages and $226 in attorney's fees), with legal interest thereon from date of judicial demand and for all costs. Plaintiffs have appealed therefrom.

In this court plaintiffs argue they are entitled to the judgment they seek, contending, as they did in the trial court,...