Anderson Window & Patio Co., Inc. v. Dumas

• Citation: 560 So.2d 971
• Decision Date: 26 April 1990
• Docket Number: No. 89-C,89-C
• Parties: ANDERSON WINDOW & PATIO COMPANY, INC. v. Edward DUMAS. a-1398.
• Court: Court of Appeal of Louisiana (US)

Page 971

560 So.2d 971

ANDERSON WINDOW & PATIO COMPANY, INC. v. Edward DUMAS.

No. 89-Ca-1398.

Court of Appeal of Louisiana Fourth Circuit.

April 26, 1990.

H.O. Brickson, Bryant, Renneker & McLean, New Orleans, for plaintiff/appellant.

John S. Keller, Keller & Associates, Ltd., New Orleans, for defendant/appellee.

Before GARRISON, BARRY and BECKER, JJ.

BARRY, Judge.

Anderson Window & Patio Company, Inc. sued Eddie Dumas to enforce its subcontractor's privilege under Louisiana Private Works Act, La.R.S. 9:4801 et seq., for recovery of $2,597.40 representing labor and materials to install thirty-seven storm windows at Dumas' house. Dumas had contracted with Louisiana Power Savers, to have the windows installed. Anderson's work was accepted by Dumas but Anderson never received payment. Dumas answered that Louisiana Power Savers [LPS] installed the windows as the agent of Anderson. Anderson was paid by means of a $5,500 payment to LPS.

Dumas reconvened for attorney's fees and cross-claimed against Raymond Peacock d/b/a LPS for its failure to pay for the Anderson labor and materials and prayed for full indemnification if cast in judgment to Anderson. Anderson answered Dumas' reconventional demand.

Stipulations prior to trial included:

In November, 1986 Dumas entered into a contract with LPS for the installation of storm windows at his property. Dumas did not require LPS to furnish a bond nor did he file the contract with the Orleans Parish Recorder of Mortgages. Dumas accepted the work and paid $5,500 to LPS. Anderson recorded its claim with the Recorder of Mortgages on January 30, 1987 for the cost of materials and labor. Dumas did not contract with Anderson for the labor and materials to install the windows. Anderson's only involvement with Dumas was through LPS.

The trial court summarized the facts:

Mr. Tom Green on behalf of LPS contacted the Defendant to discuss installation of storm windows. After meeting with Mr. Green, the Defendant decided to purchase these windows. Mr. Green then took the appropriate measurements, and, after the windows were manufactured by the Plaintiff, Mr. Green returned to install them. At Mr. Green's suggestion, the Defenant [sic] obtained financing through Colonial Mortgage Company. Upon completion of the job, the Defendant endorsed the mortgage company's check to LPS and handed it to Mr. Green.

The trial court dismissed Anderson's petition and Dumas' reconventional demand and concluded in his reasons for judgment:

After reviewing the documents admitted into evidence and the testimony of the witnesses, the Court finds many inconsistencies in regard to the relationship among the parties. This entanglement of the parties leads this Court to the conclusion that Mr. Green was acting on behalf of both LPS and the Plaintiff in his dealings with the Defendant. Since an agency relationship exists between Tom Green and the Plaintiff the Court finds that the Defendant's payment to Tom Green represents payment to the Plaintiff, Anderson Window & Patio Co., Inc.

Anderson argues that the trial court committed two errors:

1) By assuming that the document transferred by Dumas to Green was a check in payment for the work;

2) By holding that the transfer of a check that is not payable to the transferee constitutes payment to that transferee or his principal.

TESTIMONY

James Johannesen, Office Manager for Anderson, testified that LPS telefaxed the Dumas order to Anderson in November, 1986. Anderson had an installer measure and install the thirty-seven storm windows after credit was approved. Johannesen prepared the invoice on December 17, 1986 and sent it to LPS. Johannesen stated that LPS was his customer, not Dumas and he did not send Dumas a copy of the invoice. He did not know whether an Anderson employee contacted Dumas to measure the windows, but there was a notation to call the day before installation.

Johannesen testified that it was customary for a subcontractor to pick up the windows at Anderson's dock, but in Dumas' file there was no signature to indicate the person who made the pick up and Tom Green delivered the windows. Anderson's records indicate a bill for the installation and Anderson's check payable to Green for the installation. The Anderson measuring sheet indicated Dumas was the customer but Johannesen testified that Dumas was not Anderson's customer. LPS's name appeared next to "dealer" on the measuring sheet. Johannesen would not say LPS was a dealer for Anderson. He stated that "dealer" was a term used for all contractors because Anderson was not a retailer and did not sell directly to customers. The invoice indicated the windows were sold to LPS. The Dumas contract listed LPS as the other party.

Johannesen said that Anderson never notified a homeowner that the windows were not purchased directly from LPS. When asked about Anderson's arrangement with LPS from July--December, 1986, Johannesen replied that Anderson would "run the jobs" and Anderson expected payment upon completion from LPS. He did not know all the methods LPS used to obtain business, but he knew that LPS had a showroom and display in the Landmark Hotel. He did not know if Anderson's windows were displayed.

Johannesen denied that the relationship between Anderson and LPS was "like a partnership." He said Anderson never solicited a job or directly contacted a homeowner. Johannesen stated he could not speculate on the possibility that LPS was holding itself out as a manufacturer and installer.

Johannesen testified that Anderson paid Tom Green $344.10 for the installation. The check included a $200 loan and withheld worker's compensation. Johannesen denied Green was Anderson's employee. Rather he claimed Green was a subcontractor. He stated that it was customary to withhold worker's compensation for subcontractors. Yet Johannesen declared that Anderson delivered the windows to Dumas through Anderson's agent, Green.

Johannesen stated that Anderson had no contract with LPS and summed up the business relationship among the parties: "Tom Green does work for us, and we basically do work for our customers. In this case Louisiana Power Savers."

Thomas Green, the installer, testified that he is an independent contractor with an office in his residence. He claimed that he worked for several companies during November-December, 1986. Johannesen contacted him to measure the Dumas job. Green gave the measuring sheets to Johannesen and wrote up a shop order. Green picked up the windows at Anderson's dock and completed the Dumas installation on December 12, 1986. Johannesen paid him by check on December 13, 1986.

Green did not think that he signed for the windows at Anderson's dock, but he turned in his Anderson measuring sheet with the bill after he installed the windows. He did not know if someone at the Dumas house signed for the window installation and he did not keep such a record. Green testified that he worked for several companies that dealt with Anderson. His ledger indicated that he worked directly for Anderson on some jobs. He said that in those instances Anderson was the contractor with no other company such as LPS involved. Green told the court he did the Dumas job for LPS. Green conceded that when he went to a customer's house, he represented LPS; however, he was paid by Anderson.

Eddie Dumas testified that an employee of LPS telephoned his house and invited him and his wife to a demonstration at the Landmark Hotel in November, 1986. He contracted with LPS to install the windows and identified the contract. Dumas stated that he dealt with the man he thought came from LPS, Green, who installed the windows.

Dumas testified that he obtained a second mortgage from Colonial Mortgage Company to pay for the windows because LPS had Colonial Mortgage contact him. Colonial withheld the $5,500 check until the work was complete. When Green finished, Dumas signed a document stating...