Hermeling v. Whitmore, 5253

• Decision Date: 13 December 1961
• Docket Number: No. 5253,5253
• Citation: 140 So.2d 257
• Parties: Theodore A. HERMELING, Plaintiff, v. Woodrow J. WHITMORE, Defendant, Plaintiff in Third Party Petition, Appellee, William H. SUGGS, Jr., Defendant in Third Party Petition, Appellant, Plaintiff in Third Party Petition, Appellee, Don H. SCHEMIEDER, Defendant in Third Party Petition, Appellant, Plaintiff in Third Party Petition, Appellant, Jules F. LANDRY et al., Defendants in Third Party Petition, Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 257

140 So.2d 257

Theodore A. HERMELING, Plaintiff, v. Woodrow J. WHITMORE, Defendant, Plaintiff in Third Party Petition, Appellee William H. SUGGS, Jr., Defendant in Third Party Petition Appellant, Plaintiff in Third Party Petition, Appellee Don H. SCHEMIEDER, Defendant in Third Party Petition Appellant, Plaintiff in Third Party Petition, Appellant, Jules F. LANDRY et al., Defendants in Third Party Petition, Appellees.

No. 5253.

Court of Appeal of Louisiana, First Circuit.

Dec. 13, 1961.

Application for Rehearing Denied March 14, 1962.

Rehearing Denied May 4, 1962.

Certiorari Denied June 15, 1962.

Sanders, Miller, Downing, Rubin & Kean, Major & Ponder, Laycock & Stewart, Baton Rouge, for appellants.

Weber & Weber, C.C. Bird, Jr., Baton Rouge, for appellees.

Before ELLIS, HERGET and MILLER, JJ.

MILLER, Judge pro tem.

This suit was brought on January 21, 1958, by plaintiff Theodore A. Hermeling seeking to rescind the sale of a house and lot that he purchased from defendant Woodrow J. Whitmore on February 20, 1957. Plaintiff alleges that there were redhibitory vices in the house and that he first became apprised of the vices in May, 1957. The petition of plaintiff averred that the 'West wall * * * had moved away from the floor'; that the 'entire West wall appeared to be moving out from the house'; and that the 'West wall had continued to move out and away from the floor of the two West bedrooms with the result that the maximum separation is now approximately 2 inches * * * at the floor to approximately 1/4 of an inch * * * ( 3/4 of the way to the ceiling)'.

The District Court rescinded the sale and gave the plaintiff Hermeling a judgment against the defendant Whitmore for $25,000.00, the amount of the purchase price in the sale from Whitmore to Hermeling. The judgment was signed December 18, 1958, and neither the plaintiff nor the defendant appealed. Therefore, as between Hermeling and Whitmore, the district court judgment as between these two parties is final.

The defendant, Whitmore, by third party petition, sued his vendor, William H. Suggs, Jr., and asked for judgment over against Suggs if Whitmore was cast. This petition was filed March 21, 1958. Defendant Whitmore purchased the house and lot from Suggs on September 1, 1954. The district court, in its December 18, 1958, judgment also rescinded this sale and gave Whitmore a judgment over against Suggs for $21,250.00, the amount of the purchase price in the sale from Suggs to Whitmore. Suggs appealed suspensively, and defendant Whitmore has answered this appeal seeking an increase in the award in his favor against Suggs from the sum of $21,250.00 to the sum of $25,000.00.

The defendant Whitmore, in his third party petition against Suggs, also joined Don H. Schmieder as the vendor of Suggs, under his subrogation from Suggs, and sought to obtain an in solido judgment against both Suggs and Schmieder. But on an exception of no cause or right of action filed by Schmieder, the district court, following the ruling in McEachern v. Plauche Lumber & Construction Company, 220 La. 696, 57 So.2d 405, dismissed this third party petition against Schmieder. This judgment was signed July 21, 1958, and Whitmore did not appeal from that final judgment which sustained Schmieder's exception.

Suggs by third party petition made his vendor, Don H. Schmieder a third party defendant. This petition was filed May 12, 1958. Suggs purchased the house and lot from Schmieder on November 18, 1953, for the sum of $22,500.00. The district court rendered judgment on this third party petition in favor of Suggs and against Schmieder rescinding the sale and ordering Schmieder to pay Suggs $22,500.00 the price set forth in the sale. Schmieder has appealed suspensively from this judgment

Schmieder, by third party petition, made his vendor of the lot, East Broadmoor Company, Inc. (herein represented by Jules F. Landry, et al.) third party defendant on the theory that this defendant manufactured the lot from a forest, and is presumed to know of the vice in the lot; that there was a defect in the lot when Schmieder purchased it which made it unfit to be used as a building site for a home. This petition was filed May 29, 1958. Schmieder purchased the lot on July 1, 1953, for the price of $3,300.00 and during a 60-day period sometime between that date and November 15, 1953, Schmieder built the house on the lot at a cost of $18,336.42. The district court found for Jules F. Landry, et al., and Schmieder has appealed.

There is no serious dispute as to the following dates and events:

July 1, 1953--Sale of lot by East Broadmoor Company, Inc., (herein represented by Jules F. Landry, et al.) to Don H. Schmieder.

November 18, 1953--By this date Schmieder, as builder had constructed a house on this lot according to plans and specifications prepared at his request by a draftsman, which specifications met the minimum FHA requirements of that time. On November 18, 1953 the residence and lot were conveyed to William H. Suggs, Jr.

September 1, 1954--Suggs conveyed this property to Woodrow J. Whitmore and at that time Suggs had no knowledge of there having been any redhibitory vices.

January, 1956--Whitmore discovered severe cracking in the west brick wall of this brick veneer home and called this to the attention of Suggs who in turn notified Schmieder.

February or

March, 1956--Schmieder undertook at his own expense to repair these cracks by digging under the chain wall and jacking up the northwest corner of the concrete chain wall. After this was done additional concrete under pinning was poured under the west chain wall. The brick wall was repointed and the interior cracks were repaired and repainted.

June, 1956--Additional cracks appeared both outside and inside the home. Schmieder again attempted to repair these by pouring additional concrete under pinning under the west foundation. Again the interior cracks were repaired and repainted. All of these major repairs were made at Schmieder's expense and under his direction.

December, 1956--Theodore A. Hermeling agrees to purchase the property.

February 20, 1957--The deed is passed whereby Hermeling purchased the property from Whitmore.

May, 1957--Hermeling discovers defects along the west wall.

January 20, 1958--Suit filed naming Whitmore as defendant.

There are many complicated issues presented in this case, all of which have been argued at great length and with eminent ability. Several of these issues are not discussed in this opinion for the reason that, in our view, the case is to be decided on the issue of prescription.

Since the judgment in favor of Hermeling rescinding the sale from Whitmore to Hermeling has become final we are here primarily concerned with Hermeling's rights which he acquired by subrogation to Whitmore's claims against Suggs and Schmieder. This subrogation comes about by virtue of the contract in each of the deeds by which this property was conveyed which contained the following provision:

'Said vendor has bargained and sold, and does by these presents grant, bargain, sell, assign, transfer, deliver and abondon and set over * * * with substitution and subrogation to all rights and actions of warranty against all preceding owners and vendors.'

By virtue of this subrogation, Hermeling is subrogated to all rights which Whitmore has against Suggs and Schmieder. However Whitmore's claim against Suggs by reason of redhibitory vices, prescribed on September 1, 1955, and his claim against Schmieder by reason of redhibitory vices, prescribed in January, 1957.

Since Suggs had no knowledge of any redhibitory vice at the time he sold the property to Whitmore, Whitmore's claim in redhibition prescribed on September 1, 1955 (one year after the sale), by virtue of the provision of LSA-C.C. Article 2534. This Article provides in part that:

'The redhibitory action must be instituted within a year, at the farthest, commencing from the date of the sale. This limitation does not apply where the seller had knowledge of the vice and neglected to declare it to the purchaser.'

Although prescription had run against Suggs because he had no knowledge of the vice at the time he sold the property to Whitmore, the deed from Suggs to Whitmore subrogated Whitmore to all of Suggs' claims against his vendor, Schmieder. It is now well established that the owner-contractor is presumed to have knowledge of latent defects, and, therefore, prescription does not commence to run as against the builder as to such defects until the date of their discovery. LSA-C.C. Art. 2545 and 2546, McEachern v. Plauche Lumber & Construction Company, supra, Tuminello v. Mawby, 220 La. 733, 57 So.2d 666, Johnson v. Hunter, La.App., 88 So.2d 467, Daly v. Abramson, La.App., 117 So.2d 772, De Pietro v. LeBlanc, La.App., 68 So.2d 156. Since the defects were discovered in January, 1956, prescription as to the claim in redhibition began to run in favor of Schmieder as of that date, and the claim prescribed in January of 1957. The Civil Code articles which so provided are LSA-C.C. Articles 2545 and 2546 which set forth in part:

'The seller, who knows the vice of the thing he sells and omits to declare it, * * * (i)n this case, the action for redhibition may be commenced at any time, provided a year has not elapsed since the discovery of the vice.'

To overcome the authorities hereinabove discussed and in an effort to distinguish this case from those hereinabove cited, Hermeling's counsel has presented an argument which has not yet been approved or disapproved by the Louisiana Appellate Courts. The substance of Hermeling's argument is that although Whitmore's claim in redhibition had prescribed as against both Suggs and Schmieder, these two defendants lose this defense by virtue of the fact that they are called in warranty which warranty is granted in LSA-C.C. 2475 and 2476 and under the expressed wording of their deeds of conveyances. Hermeling argues that the mere fact...