Federico v. Kratzberg

• Court: Court of Appeal of Louisiana
• Writing for the Court: SAMUEL
• Citation: Federico v. Kratzberg, 163 So.2d 843 (La. App. 1964)
• Decision Date: 04 May 1964
• Docket Number: No. 1434,1434
• Parties: Frank F. FEDERICO and Frank J. Prima, Jr. v. Rosemary MUHLEISEN, Wife of and Henry M. KRATZBERG.

Page 843

163 So.2d 843

Frank F. FEDERICO and Frank J. Prima, Jr. v. Rosemary MUHLEISEN, Wife of and Henry M. KRATZBERG.

No. 1434.

Court of Appeal of Louisiana, Fourth Circuit.

May 4, 1964.

Chaffe, McCall, Phillips, Burke, Toler & Hopkins, Nolan Kammer, New Orleans, for plaintiffs-appellants.

Christensen & Christensen, Siegfried B. Christensen, III, New Orleans, for defendants-appellants, and plaintiffs in reconvention.

Before YARRUT, SAMUEL and BARNETTE, JJ.

SAMUEL, Judge.

This suit on a written contract calling for the extensive repair and remodeling of a residence was brought by the contractors against the owners of the property. Plaintiffs seek to recover the total sum of $2,688.86, consisting of $1,433.44, the balance due under the contract price, and $1,255.42, the amount allegedly due for extras. Defendants answered denying liability, averring alternatively that some of the extras claimed were included in the contract and others were neither ordered nor acquiesced in, and reconvened for damages due to what they claim is defective workmanship and for the recovery of excess interest charges on a home improvement loan occasioned by plaintiffs' failure to timely perform, a total of $4,534.40.

There was judgment in the trial court on the main demand in favor of plaintiffs in the sum of $2,688.86, being the total amount claimed by them, and on the reconventional demand in favor of plaintiffs in reconvention in the sum $2,310.00, the cost of correcting defective workmanship as found by the court. Both plaintiffs and defendants have appealed.

Plaintiffs' appeal seeks interest on delinquent progress payments, denied by the trial court judgment, and a reversal of the award of damages to the defendants as plaintiffs in reconvention. By their appeal, in addition to their alternate contention relative to extras, the defendants seek to set aside the entire award made to plaintiffs and to increase the award in their favor to the sum for which they originally prayed, which increase consists of the amount of the alleged excess interest charges occasioned by plaintiffs' failure to timely perform, an item denied by the trial court, plus the cost of correction as reflected by the highest of three bids or estimates, which highest bid was not used by the court as a basis for its award in reconvention.

The total contract price was $7,374.00 and there is no dispute that the unpaid balance was $1,433.44. The contract provided for certain progress payments to be made during the course of the work and 30 days thereafter. However, by mutual agreement among the parties no payments were made until after plaintiffs considered their work to have been completed at which time they billed the defendants for the entire contractual price. A bill for the extras was sent at a later date.

The only witness called by the plaintiffs, other than for cross examination under the act, was one of the plaintiff contractors. He testified that the work had been completed in accordance with the contract in a workmanlike and satisfactory manner as were the extras which were done with the consent and approval of the defendants.

In addition to the two defendants, three expert witnesses testified on their behalf. They were an architect and two contractors. These three witnesses, particularly the architect, testified to numerous instances of defective workmanship and to some instances where faulty material was used. The architect estimated the cost of correcting the defective work and replacing the faulty materials and the two contractors testified to bids they had submitted to perform the work...