French Market Homestead Ass'n v. Usner

• Decision Date: 05 May 1930
• Docket Number: 29678
• Citation: 129 So. 202,170 La. 783
• Parties: FRENCH MARKET HOMESTEAD ASS'N v. USNER et al
• Court: Louisiana Supreme Court

129 So. 202

170 La. 783

FRENCH MARKET HOMESTEAD ASS'N v. USNER et al

No. 29678

Supreme Court of Louisiana

May 5, 1930

Rehearing Denied June 2, 1930

Appeal from Civil District Court, Parish of Orleans; William H Byrnes, Jr., Judge.

Concursus proceeding by the French Market Homestead Association against Anthony M. Usner and others. From the judgment rendered, the association appeals.

Amended and affirmed as amended.

Arthur J. Peters, of New Orleans (S. G. Roos, of New Orleans, of counsel), for appellant.

Milner & Porteous, P. M. Milner, and W. J. Guste, all of New Orleans, for appellees Fidelity & Deposit Company of Maryland and Anthony M. Usner.

Charles I. Denechaud and Ernest J. Robin, both of New Orleans, for appellee Crescent City Sash, Door & Blind Mfg. Co., Inc.

Ernest J. Robin, of New Orleans, for appellee Davis-Wood Lumber Co., Inc.

Weiss, Yarrut & Stich, of New Orleans, for appellee United Hardware Company, Limited,

Andrew B. Booth, Jr., of New Orleans, for appellee J. C. Maurer.

E. J. Thilborger and J. J. Cullinane, both of New Orleans, for appellee Thos. E. Lunch.

OPINION

LAND, J.

This is a concursus proceeding in which the main issue is whether Anthony M. Usner, contractor, has complied with certain plans and specifications in making alterations and additions to premises, No. 3707 Constance street, in the city of New Orleans.

These alterations and additions were to be made by the contractor to a single five-room cottage, with bath, the property of the homestead association, for account of Walter W. Apken, one of its stockholders. The contract price is $ 4,300 and the object in view was to convert the cottage into a duplex.

The contract entered into between the homestead association and the contractor is of date April 4, 1924, and the work was to be completed on or before 90 working days from April 9, 1924.

The homestead association exacted a bond in the sum of $ 4,300 from the contractor, who furnished the Fidelity & Deposit Company of Maryland as surety. The contract and bond were both duly recorded.

After making to the contractor three payments of $ 860 each, the homestead association declined to make the fourth and fifth payments of $ 860 each, on the ground that the contractor had not complied with the plans and specifications, and later demanded that the contractor and surety replace certain defective work and complete certain unfinished work. Upon the default of both of them, the homestead association proceeded to provide material and workmen, and finished the work at the expense of the contractor, and at a cost of $ 557.72.

This work was not completed by the homestead association until March 6, 1925.

On November 4, 1925, the present concursus proceeding was provoked by the homestead association, and the difference between the last two payments withheld and the cost of the work done by the homestead association, or the sum of $ 1,162.28, was deposited in court.

In the concursus proceeding the homestead association seeks to recover of the contractor and his surety $ 557.72, the cost of the work completed by it, $ 1,500 damages for the alleged failure of the contractor to construct the building according to plans and specifications, $ 1,350 for demurrage, and $ 500 as attorney's fees.

The defense of the contractor and surety to the demand of $ 557.72 is that this amount was expended by the homestead association for items not called for by the plans and specifications, which they allege were complied with substantially.

All of the claims of the homestead association, fee of its attorney included, were rejected in the judgment of the lower court, except the claim of $ 4 allowed for flashing of chimney. The homestead association was ordered to deposit in court, in addition to the sum of $ 1,162.28 previously deposited, $ 553.72 being $ 557.72 balance on the contract, less $ 4 allowed for flashing of chimney, with legal interest on this sum from November 4, 1925, until so deposited or paid.

The judgment of the lower court also condemned the homestead association to pay the special fees of the commissioner and of the stenographer and all costs of the concursus proceeding, and judgment for same was rendered in favor of the contractor, surety, and claimants whose claims were allowed.

The homestead association paid in full all of the workmen and furnishers of material secured by it to complete the building, at a cost of $ 557.72. These claimants are out of the case. The claims of the claimants for labor and material furnished to the contractor, and recognized in the judgment of the lower court, are not contested on appeal, except in the single instance hereinafter considered.

As to the alleged defects in the building, the trial judge held that these were of a minor character, and that the building contract had been substantially complied with by the contractor.

It was also held by him that the specific work done by the homestead association at a cost of $ 557.72 was not contemplated by the plans and specifications.

We will consider the last holding of the trial judge first.

Flashing.

1. Under the head of "Sheet Metal Work" in the specifications we find the following requirement: "Flashings to be furnished to roofer where necessary and all other necessary flashing to be done by Sheet Metal Contractor."

In the second article of the building contract signed by Usner, contractor, and by the surety company, it is stipulated that: "Should any dispute arise respecting the true construction or meaning of the drawings or specifications, the same shall be decided by Mr. Sam P. Simone, the expert of said party of the first part, (Homestead Association), or by some other known capable architect, to be appointed by said party of the first part, and his decision shall be final."

The specifications do not require flashings specifically for the chimney or the front porch, but declare that they shall be furnished where necessary. This was a matter to be decided by the homestead association expert, Simone. He required flashings for the chimney and front porch, which the contractor had failed to supply, and also for a hole cut by the plumber under the bathtub and left open.

The evidence shows that a chimney should be flashed to keep the water from going in between the roof and the chimney, and that there should be a counter flashing over it to stop it from leaking.

The evidence further shows that a shallow porch like that on the plans is subject to driving rains and should be flashed to protect the sill against being rotted out.

The evidence also shows that there was no reason for leaving the hole under the bathroom tub, "because the plumbing can be down and doors provided in the wall so as to get at the trimmings of the keyed-in tub."

Besides, such a hole is a mere passageway for rats and vermin into the house.

The flashing was done by Henry Cheron at a cost of $ 37 and is allowed as a whole as necessary.

Rear Gable.

2. This gable was built, and the sheathing of the roof was left exposed. We do not find any complaint as to the condition of this gable among the items of unfinished and rejected work contained in letter of Simone, expert, of date August 15, 1924, and addressed by him to the homestead association.

The item for boxing in and painting rear gable is not required by plans and specifications and was properly rejected.

Double Doors.

3. Under the head of "Interior Work" in the specifications we find the following:

"All doors to be made of Cypress and have panels, as per details, plain sticking. Glazed doors to have beads for fastening glass. Double doors to have astragals."

The plans do not show double doors at all between the front room and next room. There is only an arch, 7 feet high and 7 feet wide, between these rooms according to the plans.

The homestead association has placed French glass folding doors in this arch.

We agree with Leon Weiss, a competent architect, and, in our opinion, a disinterested witness, that such doors are not required by the plans and specifications.

Cement Caps for Porch and Steps.

4. Under the head of "Cement Caps" in the specifications it is provided that: "Cement caps for front porch and buttresses for front steps to be same composition as for walks, but finished with a sand finish in imitation of stone."

This specification is correctly interpreted, in our opinion, by Mr. Weiss, who states: "They should in that case either be -- I should say in that particular case, they should be brick cemented over, and then floated down with sand float so as to look like stone."

Imitation stone of this character is very far from being reinforced concrete caps, which were used by the homestead association for caps on the front porch and front step railings. These are not required by the plans and specifications. This item amounted to $ 58, and was properly rejected.

Front Brick Steps.

5. The steps were taken down and rebuilt at a cost of $ 49, exclusive of the concrete caps, forthe reason that they were out of plumb.

The plans show in figures width of house, 26 feet 6 inches. When completed, the house in front was 26 feet 1 inch, and in rear 26 feet 2 1/2 inches.

The plans show in figures length of house, 71 feet. When completed, the upper side measured 69 feet 10 3/4 inches, and the lower side 70 feet 9 1/2 inches.

Mr. Weiss, president of the Louisiana Architects' Association, and for many years a homestead expert, inspected the building and compared it with the plans and specifications.

He testified: "The front porch varies in depth, which was not necessary. One side measures 6 feet, 3 inches, and the other side, 6 feet, 3 1/2 inches, and the plans call for 6 feet, 6 inches. That should...