Delta Equipment & Const. Co. v. Cook

• Citation: 142 So.2d 427
• Decision Date: 16 May 1962
• Docket Number: No. 5399,5399
• Parties: DELTA EQUIPMENT & CONSTRUCTION CO., Inc. v. W. G. COOK, d/b/a Cook Construction Co.
• Court: Court of Appeal of Louisiana (US)

Page 427

142 So.2d 427

DELTA EQUIPMENT & CONSTRUCTION CO., Inc. v. W. G. COOK, d/b/a Cook Construction Co.

No. 5399.

Court of Appeal of Louisiana, First Circuit.

May 16, 1962.

Rehearing Denied June 29, 1962.

Kantrow, Spaht & Kleinpeter, by Carlos G. Spaht, Baton Rouge, for appellant.

McGehee & McKinnis, by E. Drew McKinnis, Baton Rouge, for appellee.

Before LOTTINGER, LANDRY and REID, JJ.

LANDRY, Judge.

This is a redhibitory action in which plaintiff, as purchaser of a Manitowoc Model 4500 dragline machine equipped with a 140 foot boom and a Cummins NVHS diesel engine (bought from defendant for the price and sum of $110,700.00), seeks not rescission of the sale but return of the purchase price paid and certain alleged expenses incurred by plaintiff because of purported defects in the dragline which rendered it unfit for the purposes for which it was purchased. Plaintiff judicially tendered return of the dragline (sometimes hereinafter referred to simply as 'the machine', 'the rig', or 'the equipment') but instead of praying for rescission of the sale prayed for judgment in the aggregate of $165,700.00, representing the purchase price of the machine and certain alleged expenses incurred by plaintiff in the repair and maintenance thereof subsequent to the sale.

The day following institution of this lawsuit, plaintiff sold the equipment to a third party thus converting this action to a demand for reduction of the purchase price thereof. Ehrlich v. Roby Motors Co., 166 La. 557, 117 So. 590.

Without assigning written reasons therefor, the learned trial court rendered judgment in favor of plaintiff and against defendant in the sum of $30,000.00. From said adverse judgment defendant has prosecuted this appeal.

The defense tendered on behalf of appellant is essentially that title to the equipment in question was transferred to plaintiff under the terms of a written contract of sale entered into by and between the parties at Jackson, Mississippi on June 12, 1956 and consequently, the contract is governed by the laws of the state of Mississippi and must be interpreted according to the laws of our said sister state. Defendant further maintains that under Mississippi law the sale of a movable by any party othr than the manufacturer carries no implied warranty but rather the doctrine of 'caveat emptor' or 'purchaser beware' applies in the absence of express warranty by the vendor. On said premise defendant argues that since the Mississippi contract (hereinafter set out in full) contains no express warranty of the equipment therein described, plaintiff purchased same at his own risk and defendant is not responsible or liable for any defects therein. Alternatively, defendant maintains that the dragline in question was free of defects and suitable for the purposes for which it was purchased by plaintiff.

On the other hand, plaintiff maintains that the Mississippi contract of June 12, 1956 was not a completed sale but merely an agreement to buy and sell; that no title was transferred thereunder and that title did not in fact pass until consummation of a sale with chattel mortgage subsequently entered into between the parties under date of June 25, 1956, which latter transaction was a Louisiana contract duly recorded in this state.

In contending that the contract of sale herein involved was consummated and completed in the state of Mississippi on June 12, 1956, learned counsel for defendant relies upon the provisions of LSA-R.C.C. Article 2456 and the jurisprudence thereunder to the effect that as between vendor and purchaser title to a movable passes as soon as there exists agreement upon the object and price irrespective of delivery of possession or payment of the agreed price.

Although learned counsel for defendant does not specifically so state in his brief, his position in this regard is unquestionably based on the premise that where the courts of this state must apply the laws of another state, the law of such other state will be presumed to be the same as the laws of this state in the absence of proof to the contrary.

Esteemed counsel for plaintiff argues that the agreement of June 12, 1956, executed in Jackson, Mississippi was merely an agreement to buy and sell and as such merely part of the preliminary negotiations which culminated in the actual transfer of June 25, 1956, which latter transaction is a Louisiana sale. Counsel for plaintiff further contends that since the sale in question was confected in Louisiana, the provisions of Article 2520 LSA-R.C.C. apply and, therefore, defendant vendor impliedly warranted the machine to be suitable for its intended purpose. Counsel for plaintiff, However, concedes that plaintiff hving sold the machine to a third party, is therefore unable to make return thereof to defendant and is consequently limited to recovery of the difference in value between a sound and an unsound article. Able counsel for plaintiff further argues that in addition to reduction in price, plaintiff is entitled to damages because of defendant's alleged failure to disclose known vices in the equipment and also because of defendant's reputed misrepresentation of the capacity of the equipment--all as provided for by Articles 2545 and 2547 LSA-R.C.C.

From the foregoing, it is obvious that the first issue to be resolved is whether the sale which is the subject matter of this suit must be interpreted according to the laws of the state of Mississippi or those of this state.

The courts of this state have consistently followed the well recognized majority rule that the effect attributed to a contract and the rights, duties and obligations of the parties arising thereunder and flowing therefrom are, as a general rule, to be determined by the laws of the state in which the contract is executed. Moore v. Burdine, La.App., 174 So. 279; Lewis v. Columbia Mut. Life Ins. Co., La.App., 197 So. 619.

The jurisprudence of this state is also well settled to the effect that the courts will not take judicial notice of the laws, statutes or decisions of a sister state but that such laws, statutes and decisions, when applicable, must be alleged and proved in the same manner as any other material and relevant fact otherwise the laws of such other state shall be presumed to be the same as those of this state. Sheard v. Green, 219 La. 199, 52 So.2d 714; Welch v. Jacobsmeyer, 216 La. 333, 43 So.2d 678.

Since the alleged sale of June 12, 1956 must be interpreted in the light of Mississippi law, we shall now proceed to consider whether the record contains evidence of the law of that state regarding the circumstances under which title of a movable passes from vendor to purchaser. If evidence thereof appears in the record, the agreement of June 12, 1956 must be interpreted in the light of Mississippi law otherwise it must be construed according to the law of this state on the assumption that the law of the state of Mississippi is identical with the law of this state.

By stipulation appearing in the record, counsel for both plaintiff and defendant agreed that either counsel might introduce decisions of the Mississippi Courts as evidence of Mississippi law without the necessity of further proof and, in addition, consented to consideration by the trial court of any reported decision of the Supreme Court of Mississippi in determining Mississippi law insofar as same may be applicable herein. We deem it advisable to quote said stipulation in full as follows:

'MR. SPAHT: It is agreed and stipulated that either counsel for plaintiff or defendant may offer to the Court decisions from the reported cases as being the law of Mississippi without the necessity of producing an attorney from that state who will testify that that is a decision of the appellate court, and that the Court can take into consideration any reported decisions from the Supreme Court of the State of Mississippi as reported in Southern Reporter or the original Mississippi reports, or otherwise.

'MR. McKINNIS: And, Your Honor, pursuant to that stipulation we would ask the court to take judicial cognizance of the decisions of the Mississippi court in the following two cases: Touchstone versus Bond (223 Miss. 487), 78 Southern (2d) 463, and Dowling versus Smyley (150 Miss. 272), 116 Southern 294, and with that, Your Honor, we rest.'

In pursuance of the foregoing stipulation learned counsel for defendant cited in his brief only one Mississippi decision, namely, Watts et al. v. Adair, 211 Miss. 777, 52 So.2d 649, an opinion rendered in 1951 by the Supreme Court of Mississippi to the effect that there is no implied warranty in the sale of a movable other than by the manufacturer thereof.

Illustrious counsel for plaintiff relies upon the decisions cited in the stipulation, supra, and also that of Merchants' & Manufacturers' Bank of Ellisville v. P. J. Toomer Lbr. Co., 115 Miss. 647, 76 So. 565, handed down by the Supreme Court of Mississippi in 1917. The Dowling case, supra, cited by counsel for plaintiff is authority simply for the proposition that a contract is the exponent of its own terms and all previous understandings and agreements are merged in the contract upon its reduction to writing. The Touchstone case, supra, holds only that misrepresentation by a seller of a material fact inducing purchase, is a fraud in law notwithstanding the vendor's lack of knowledge of the truth of the statement and is ground for avoidance of a sale. The remaining authority cited and relied upon herein by counsel for plaintiff is that of Merchants' & Manufacturers' Bank of Ellisville v. P. J. Toomer Lbr. Co., 115 Miss. 547, 76 So. 565, a decision of the Mississippi Supreme Court, which holds, with respect to transfer of title, as follows:

'* * * the question whether the title thereby passes from the vendor to the vendee depends upon the intention of the vendor, which intention is to be gathered from all the circumstances of the transaction. Emery Sons v. (Irving Nat.) Bank, ...