Fein v. Finkelstein

• Decision Date: 16 November 1925
• Docket Number: 9110
• Court: Court of Appeal of Louisiana — District of US
• Parties: SAMUEL FEIN v. R. FINKELSTEIN, Appellant

3 La.App. 347

SAMUEL FEIN v. R. FINKELSTEIN, Appellant

No. 9110

Court of Appeals of Louisiana, Orleans

November 16, 1925

Appeal from the Civil District Court. Hon. Wm. H. Byrnes, Judge.

This is a suit upon a building contract.

There was judgment for plaintiff and defendant appealed.

Judgment amended.

Howell Carter, Jr., of New Orleans, attorney for plaintiff appellee.

Scott E. Beer, of New Orleans, attorney for defendant, appellant.

OPINION

CLAIBORNE, J.

This is a suit upon a building contract.

Plaintiff is a contractor. He alleged that in March, 1922, he made a written contract with the defendant to put up show windows for the price of $ 850.00 according to a blue print annexed to his petition upon the property of the defendant, Nos 536-38 Canal street; that as appears from sad blue print two columns were to be erected in front of said windows, with plate glass in the windows and upon the columns; that during the progress of the work the following extras were ordered by the defendant:

First Mirrors instead of plate glass in the two columns.

Second: Two extra columns in front, making four instead of two with mirrors, $ 150.00.

Third: Two extra coats of paint on the windows, and scraping the floors of the windows and putting shellac and painting the front of the building, $ 75.00.

Fourth: Making over the door to the elevator and transoms with hinges, $ 25.00; making in all $ 250.00.

That he had been paid on account of

said work the sum of

$ 400.00

The defendant has paid for the plate

glass

317.67

$ 717.67

Leaving a balance due plaintiff on

original contract of

$ 132.33

And for extra work

250.00

Balance due

$ 382.33

Which plaintiff claims with privilege on the building.

The defendant, Finkelstein, answered that the original sketch submitted by him to the plaintiff for his bid showed four columns and not two, with mirrors on each side of the four posts; that the plaintiff submitted to him a blue print, which he said was a copy of said sketch, together with a contract; that defendant, assuming that the blue print was the same as the sketch, as plaintiff said it was, signed the contract without examining the blue print, and to that extent he was deceived by the statements of plaintiff; he denied that any changes were made to the contract or that any of the work done by plaintiff constituted extras.

The District Court found that there was a balance due on the original contract of $ 65.00, and allowed $ 250.00 for the extras.

Defendant appealed.

However reluctant we are to differ from the trial judge upon a question of fact, our duty compels us to decide according to our convictions after reading the testimony.

One witness, a builder, testifies that the defendant called upon him for a bid to construct the two show windows according to the sketch calling for four columns.

Two witnesses, clerks of the defendant, swear that the plaintiff was asked to make a bid according to that sketch; one witness swears he helped to draw the sketch; that the plaintiff suggested the propriety of having a blue print made; that he took away the sketch and returned with the blue print and stated that it was in accordance with the sketch; that the defendant then and there agreed upon a price of $ 850.00 and prepared a written contract to do the work according to the blue print which was annexed to the contract and marked A that a few days before the completion of the work the plaintiff told them he was losing...