Acorn Refining Co. v. Ringgold

• Decision Date: 09 November 1940
• Docket Number: 2159.
• Citation: 198 So. 394
• Court: Court of Appeal of Louisiana — District of US
• Parties: ACORN REFINING CO. v. RINGGOLD.

198 So. 394

ACORN REFINING CO. v. RINGGOLD.

No. 2159.

Court of Appeal of Louisiana, First Circuit.

November 9, 1940

Appeal from Nineteenth Judicial District Court, Parish of East Baton Rouge; Chas. A. Holcombe, Presiding Judge.

Suit by the Acorn Refining Company against Wesley Ringgold for materials sold by plaintiff to defendant, wherein defendant made reconventional demand. From judgment rejecting plaintiff's demand and rejecting defendant's reconventional demand, plaintiff appeals.

Affirmed.

Jos A. Gladney and W. Frank Gladney, both of Baton Rouge, for appellant.

Appellee not represented on appeal.

DORE Judge.

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 2475, provides that " the seller is bound to two principal obligations, that of delivering and that of warranting the thing which he sells" . Under Civil Code Article 2476, " the warranty respecting the seller has two objects; the first is the buyer's peaceable possession of the thing sold, and the second is the hidden defects of the thing sold or its redhibitory vices" . It is now well established, under these articles, that, in the absence of an express waiver of warranty, the vendor of paint, etc., warrants the thing sold as fit for the purposes intended. American Paint Works v. Metairie Ridge Nursery, 1 La.App. 396; Davis Co. v. Casso, 5 La.App. 565; Weaver Lumber Co. v. Paramount Wood Products Co., __ La.App. __, 146 So. 356.Under ...