Jim Walter Corp. v. Laperouse

• Decision Date: 15 February 1967
• Docket Number: No. 1882,1882
• Citation: Jim Walter Corp. v. Laperouse, 196 So.2d 539 (La. App. 1967)
• Court: Court of Appeal of Louisiana
• Parties: JIM WALTER CORPORATION, Plaintiff-Appellant, v. Jimmy LAPEROUSE, Defendant-Appellee.

Page 539

196 So.2d 539

JIM WALTER CORPORATION, Plaintiff-Appellant, v. Jimmy LAPEROUSE, Defendant-Appellee.

No. 1882.

Court of Appeal of Louisiana, Third Circuit.

Feb. 15, 1967.

Rehearing Denied March 21, 1967.

Walton J. Barnes, Baton Rouge, and Marion W. Groner, New Iberia, for plaintiff-appellant.

Armentor & Resweber, by A. J. Resweber, Provost & Ernest, by C. Arthur Provost, New Iberia, Earl H. Willis, St. Martinville, for defendant-appellee.

Before FRUGE , SAVOY and CULPEPPER, JJ.

FRUGE , Judge.

James Laperouse, the owner of five lots in Fontelieu Addition in the City of New Iberia, contracted with the plaintiff, Jim Walter Corporation, to have constructed upon the five lots five houses known within the building trade as 'shell homes'. Pursuant to the negotiations between plaintiff and Mr. Laperouse, written contracts for the construction of the houses were signed and recorded. The price specified in the contracts was $3,050.00 cash upon completion of the work on each house. Each house was to be constructed according to plans and specifications attached to each contract; however, no plans were ever attached by either the owner or the builder.

Some months prior to the confection of the above contracts, the defendant's father, Expadie Laperouse, obtained a first mortgage in the amount of $30,000.00 upon the five lots in question. In order to finance construction of the five houses, the younger Laperouse went to New Iberia National Bank and gave as security a mortgage upon the five lots. To further secure the transaction, the elder Laperouse's mortgage was subordinated to the Bank's mortgage and he endorsed, as an accommodation endorser, the promissory note representing the construction loan to the younger Laperouse. Before the approval of the construction contracts at issue, and as required by Jim Walter Corporation, the bank gave a letter of commitment addressed to Jim Walter Corporation, notifying it that the bank was prepared to advance funds for the construction of the houses as specified by the contracts.

Construction began on all five houses at once and in due course the bank paid, by cashier's checks issued to Jim Walter Corporation, $6,100.00 for the completion of two of the houses. Throughout the progress of construction, however, the younger Laperouse expressed dissatisfaction with the materials and the methods of construction, and after the two houses had been paid for as outlined above, he instructed the bank to withhold further payments from the plaintiff corporation.

The corporation brought suit in the district court alleging that it had complied fully with the terms of the contract between it and Jimmy Laperouse, and praying for a judgment in the amount of $9,150.00, the contract price of the three remaining houses, plus $15.00 for the preparation and recordation of its lien on the properties. By supplemental and amended petition, plaintiff corporation brought in as additional defendants, Expadie Laperouse, the father of Jimmy Laperouse, and the New Iberia National Bank, alleging that the three defendants had fraudulently conspired to defeat the plaintiff-corporation's recovery of the price of construction of the houses. In the alternative, plaintiff-corporation prayed for recovery of the reasonable value of material and workmanship on the basis of quantum meruit. The trial judge dismissed the plaintiff's suit, holding that the corporation had not complied with its obligations under the contract, and from this adverse judgment the corporation has appealed to this court.

The first issue which we must decide is whether the plaintiff is entitled to recovery of the price specified in the contracts or, alternatively, of the value of the houses under the theory of quantum meruit, for we need not discuss the potential liabilities of each defendant if the plaintiff is not entitled to recovery. In deciding this issue, it is necessary to determine whether, as the plaintiff contends, the parties contracted for the construction of five 'shell homes,' or whether, as contended by the younger Laperouse, the corporation was obligated to construct houses fully finished both inside and out. As mentioned above, though the contracts themselves stated that plans and specifications were to be attached thereto, the record reveals that this was never accomplished. Nor can comfort be found in the language of the construction contracts themselves, for they merely provide that 'builder agrees to build a house according to the plans and specifications attached. * * *'

Jimmy Laperouse contends that the New Iberia agent of Jim Walter Corporation, L. J. Mire, Jr., contracted with him to construct fully finished houses on each lot and that the cost of each house would be an even $5,000.00. In this regard, we note that the letter of commitment from the Bank to the corporation supports the view of the defendant Laperouse, because it states that the bank has made a commitment to finance the houses to be constructed upon the lots to the extent of $5,000.00 per unit. On the other hand, the agent for the corporation, Mr. Mire, testified that the only obligation of Jim Walter Corporation was to furnish five shell houses and that completing the inside of the houses would be the responsibility of the owner (Laperouse), but that he arranged on behalf of Mr. Laperouse for the construction carpenters employed by Jim Walter to stay on and finish the inside of the houses. In this connection, we note that the record contains numerous cashier's check receipts showing that payments were made by the bank directly to the laborers and materialmen for work done in finishing the inside of the houses. In some cases Jimmy Laperouse was made the joint payee together with the individual laborer or materialman (Tr. 77).

Regarding the missing plans and specifications, we find in the record a roughly drawn set of plans which the testimony establishes were sketched by Mr. Laperouse and given by him to the plaintiff and to the carpenters on the job site. In the lower right-hand corner of these plans there is a list of materials and specifications containing eighteen items, some of which are clearly intended for the job of finishing the inside of the houses. We do not feel that this is unusual, however, in view of the fact that the same carpenters who were to construct the outside shell of the houses were engaged to complete the insides as well.

In addition, we are most impressed by the fact that the written and recorded contracts between the younger Laperouse and Jim Walter Corporation called for the construction of five houses at a total cost to the owner (Laperouse) of $3,050.00 per unit. Having placed his signature upon each written contract providing for the construction of houses at that lesser price, this court looks with disfavor upon testimony adduced on Mr. Laperouse's behalf which purports to establish a greater obligation at a greater price. Louisiana Revised Civil Code art. 2276; Piliawsky v. Colar, 112 So.2d 730 (Orl.La.App. 1959). It is our feeling, therefore, that the preponderance of the evidence establishes that the plaintiff, Jim Walter Corporation, was obliged by its contract with Mr. Laperouse to construct upon five lots in Fontelieu Subdivision five 'shell houses' and that the obligation of finishing the inside of the houses rested elsewhere.

Having so decided, we now turn to the question of whether the plaintiff performed his obligations under the contract. The defects which are alleged to have occurred in the construction of the five houses are as follows: That the ceiling height in one of the houses is seven feet four inches instead of eight feet as agreed upon by the parties; that two of the houses contained twenty square feet less than the total specified by the contracts; that the paint used on one or more of the houses was thinned with gasoline instead of the proper thinner, resulting in an inferior paint job.

When the building materials for the five houses were delivered to the jobsite in New Iberia, they were prefabricated with a ceiling height of seven feet four inches. While inspecting the house most advanced in construction, Mr. Laperouse discovered the alleged defect and called it to the attention of Mr. Mire, the agent of the plaintiff. Since it was too late to change the ceiling height in that one house without tearing down what had been built, the plaintiff corporation supplied new prefabricated materials with an eight foot ceiling height on the other four houses and completed the first house with a ceiling height of seven feet four inches. When questioned about this modification, the area manager of Jim Walter Corporation testified that all the shell houses which Jim Walter constructs have as a standard feature a ceiling height of seven feet four inches. He further testified that during the negotiations for the contracts at issue, the defendant had examined several sample shell houses with that identical ceiling height. Reference to the floor plan supplied by Mr. Laperouse shows that no dimension for ceiling height is indicated. When queried about this, Mr. Laperouse admitted that his failure to include this vital dimension was 'a mistake' on his part. From the evidence presented by this record, therefore, we are not prepared to say that an eight inch deviation from an eight foot ceiling height in one of the five houses is a material and substantial defect in construction which may be Directly attributable to the fault of the builder.

The same is true of defendant's other allegations of construction defects in the five houses. There is no direct proof that two of the houses contain a twenty square foot deviation from the specifications, nor is there any testimony which unquestionably indicates that gasoline was used as a paint thinner on some of the houses. The only evidence in this regard is Mr. Laperouse's testimony that while inspecting the jobsite one day he noticed that the newly applied...