Cox v. Moore

• Decision Date: 16 January 1979
• Docket Number: No. 13771,13771
• Citation: 367 So.2d 424
• Court: Court of Appeal of Louisiana — District of US
• Parties: Karl Adair COX and Linda Wickard Cox, Plaintiffs-Appellees, v. Johnny R. MOORE, Defendant-Appellant, and Lawton & Moore Builders, Inc., Defendant-Appellee.

Page 424

367 So.2d 424

Karl Adair COX and Linda Wickard Cox, Plaintiffs-Appellees, v. Johnny R. MOORE, Defendant-Appellant and Lawton & Moore Builders, Inc., Defendant-Appellee.

No. 13771.

Court of Appeal of Louisiana, Second Circuit.

Jan. 16, 1979.

En Banc.

Rehearing Denied Feb. 28, 1979.

Writ Denied April 23, 1979.

Cady & Beard by Roy L. Beard, Shreveport, for defendant-appellant, Johnny R. Moore, and defendant-appellee, Lawton & Moore Builders, Inc.

Richie & Kernaghan by C. Vernon Richie, Shreveport, for plaintiffs-appellees.

Before HALL, MARVIN and JONES, JJ.

MARVIN, Judge.

The defendant, who sold to plaintiffs a residence he had newly constructed, appeals a judgment awarding a reduction in the price of the house, expenses and attorney's fees to plaintiffs because the residence was susceptible to flooding. Plaintiffs answered the appeal. We amend to increase the award, and affirm.

Originally filed in redhibition, the suit was converted to an action in Quanti minoris by plaintiffs after they sold their house to the federal agency (HUD) which had insured payment of plaintiffs' loan for the purchase of the house. After the flooding dispute arose plaintiffs elected to sell to HUD to avoid a threatened foreclosure, receiving $2,167.95 less than the amount they had paid for the house about a year before. This was the amount allowed plaintiffs as a reduction in price by the lower court.

The lower court correctly found the house was susceptible to flooding at the time of the sale to plaintiffs because it was constructed on a lot in a low area of the subdivision in a natural drain. Plaintiffs' lot drained across city streets and through a city culvert. The culvert was of insufficient diameter to handle plaintiffs' drainage problem and an asphalt overlay of up to eight inches on the city streets compounded the problem. The inadequate culvert existed before defendant constructed on the lot. It was not established when the pavement was overlaid, but it was established that the flooding problem existed at the time of the sale.

Plaintiffs purchased the house in November, 1975. After heavy rainfalls between May and September, 1976, the house was flooded three different times. After the flooding commenced and upon plaintiffs' complaint, defendant attempted to avoid further problems by digging a ditch and erecting a retaining wall on the property. Shortly after these efforts were completed, the house flooded again and was vacated by plaintiffs. In December, 1976, plaintiffs sold to HUD.

In Davis v. Davis, 353 So.2d 1060 (La.App.2d Cir. 1977) and in Ford v. Broussard, 248 So.2d 629 (La.App.3d Cir. 1971), it was held that susceptibility to flooding is a redhibitory vice in a residence. Defendant contends that these cases are inapplicable because in both cases the seller failed to disclose what was known to him, the fact that the house had flooded before the sale and that here, the house had not flooded before the sale, and that after plaintiffs sold to HUD the flooding problem was eliminated by the installation of a culvert of larger diameter. As long as a redhibitory vice exists at the time of the sale, the buyer is allowed the remedy of redhibition or reduction in price and notwithstanding the curability of the defect. CC Arts. 2530, 2520. Curability may affect the amount of the damages and expenses under CC 2545 but not the right to claim such damages and expenses. See Prince v. Paretti Pontiac Company, Inc., 281 So.2d 112 (La.1973); Ticheli v. Silmon, 304 So.2d 792; 49 Tu.L.Rev. 484 (La.App.2d Cir. 1974); Burns v. Lamar-Lane Chevrolet, Inc., 354 So.2d 620 (La.App.1st Cir. 1977). Defendant is not benefitted by CC Art. 2531. He is a Manufacturer (See Schamens, infra ) and not a mere seller. Burns, supra. Article 2531 requires restoration of the purchase price even if the Seller is unable to repair.

Defendant also contends he was powerless to direct the City's handling of the drainage problem away from the subdivision. Redhibition is not so much directed toward who is at fault in causing the vice to exist but is directed toward the Warranty of the seller against vices in the thing sold. Hob's Refrigeration & Air Conditioning, Inc. v. Poche, 304 So.2d 326 (La.1974).

Defendant was a builder in one capacity or another in this subdivision for several years. A vendor-builder of a residence is a Manufacturer who cannot avoid the conclusively presumptive knowledge of defects in the thing he manufactures. Schamens v. Crow, 326 So.2d 621 (La.App.2d...