Kegler's Inc. v. Levy

• Decision Date: 03 August 1970
• Docket Number: No. 3856,3856
• Citation: 239 So.2d 450
• Parties: KEGLER'S INC. v. Arnold LEVY, d/b/a Modern Flooring Center.
• Court: Court of Appeal of Louisiana — District of US

Page 450

239 So.2d 450

KEGLER'S INC. v. Arnold LEVY, d/b/a Modern Flooring Center.

No. 3856.

Court of Appeal of Louisiana, Fourth Circuit.

Aug. 3, 1970.

Rehearing Denied Oct. 5, 1970.

Writ Refused Nov. 25, 1970.

H. Alva Brumfield, Baton Rouge, Evangeline M. Vavrick, New Orleans, for plaintiff-appellant.

Lemle, Kelleher, Kohlmeyer, Matthews & Schumacher, H. Martin Hunley, Jr., New Orleans, for defendants-appellees.

Before REDMANN, BARNETTE and DOMENGEAUX, JJ.

REDMANN, Judge.

Plaintiff appeals from a judgment which, after trial on the merits, dismissed on an exception of prescription his suit resulting from his dissatisfaction with carpeting furnished and installed by defendant.

In the course of constructing a building to house bowling alleys, pool tables and a lounge, plaintiff entered into a written contract with defendant under which defendant was to

'Furnish and install Roxbury 'Herrick' quality 256 pitch, 9 wire, 2 ply, 250 Pile Height in a three frame Wilton 100% Wool quality in a bowling alley pattern over Allen 56 oz. rubberized hair & jute padding * * *'

for the price of $11,165.

The installation was completed January 12, 1962, and the agreed price was paid.

About three months thereafter the carpet began to show wear in several areas, especially on a stairway. Defendant thereafter replaced the stairway and landing carpeting with rubber stair treads .

The condition of the other carpeting continued to worsen, and finally, on October 10, 1963, this suit was brought, seeking a return of the contract price and other damages.

Prescription

Plaintiff's suit was brought more than a year after both the installation of the carpet and the appearance of the defects in the carpeting. Thus if plaintiff's remedy (and only remedy) is an action for redhibition or for reduction of the price (and damages where the defect was known to the seller), the action is prescribed, LSA-C.C. arts. 2534, 2544, 2546.

Plaintiff titled its action as redihibition or quanti minoris, yet its petition recites the contract to furnish and install.

But in our opinion the contract to furnish and install wall-to-wall type carpeting is not a sale.

'The contract of sale is an agreement by which one gives a thing for a price in current money, and the other gives the price in order to have the thing itself.

'Three circumstances concur to the perfection of the contract, to wit: the thing sold, the price and the consent.' LSA-C.C. art. 2439 .

'The sale is considered to be perfect between the parties, and the property is of right acquired to the purchaser with regard to the seller, as soon as there exists an agreement for the object and for the price thereof, although the object has not yet been delivered, nor the price paid.' LSA-C.C. art. 2456.

'As soon as the contract of sale is completed, the thing sold is at the risk of the buyer * * *.' LSA-C.C. art. 2467.

'The seller is bound to two principal obligations, that of delivering and that of warranting the thing which he sells.' LSA-C.C. art. 2475.

The contract here could not realistically be said to have been perfected, and the carpeting to have become the property of plaintiff, and the risk of its loss to have been plaintiff's merely because of the agreement having been reached. Nor could defendant's obligations under the contract be described as to deliver and to warrant. In fact defendant did not have the carpeting in stock and had to have the manufacturer make it. But independent of that circumstance, defendant was obliged to cut the carpeting and padding to fit the areas to be covered, sew the seams and fix the material to the floor. This was no simple sale and delivery, as one might have with a loose, one-piece rug. In principle, the situation here appears to us similar to that of a contract to furnish and install vinyl or other tile flooring, which clearly would not be a contract of sale of the tile.

Still, because the petition was titled and spoke of redhibition and asked for (among other things) return or reduction of the 'purchase price', defendant argues the applicable prescription period is the one year for redhibition, citing American Ins. Co. v. Hartford Acc. & Indem. Co., 198 So.2d 757 (La.App.1967), cert. denied 251 La. 26, 202 So.2d 649. Defendant quotes from 198 So.2d at 763:

'It is therefore clear from an examination of the record that the plaintiff's contention that this is an action of contract, is not borne out by an examination of his pleadings, it being well settled the law of this State is that an applicable prescriptive period is to be determined by the character of the action as revealed by the allegations of the petition. Lewis v. Republic Supply Company, 155 So.2d 200 (La.App., 1st Cir. 1963); Victory Oil Company v. Perret, 183 So.2d 360 (La.App., 4th Cir. 1966). There is no question but an examination of the record clearly shows that the transaction involved herein was one of a sale and the relationship is one of buyer and seller.'

In that case, however, as the last quoted sentence shows, the transaction there was a sale (of a piece of equipment), and nothing but a sale. The preceding language, relative to determining the applicable prescriptive period from the allegations of the petition, means only that the Facts alleged (in stating a cause of action) determine the prescriptive period. Here the fact of a contract to furnish and install carpeting is alleged, and we consider this contract not one of sale. Plaintiff's characterization of his action as redhibition is not an allegation of fact.

The pertinent aspect of the Lewis case, cited in American Ins. Co., involved the sale of a wire cable. The allegedly defective cable had broken and caused damage for which the purchaser was sued. Holding the purchaser's third party demand one in redhibition prescribed by one year, the court observed, at 155 So.2d 206:

'* * * In the absence of allegations charging third party defendants with negligence, it may not be assumed the right asserted in the third party demand is an action by a tort feasor secondarily liable against a co-tort feasor primarily obligated to the injured party as was found in Appalachian Corporation v. Brooklyn Cooperage Co., 151 La. 41, 91 So. 539, or that, having an elective remedy in either tort or quasi contract, third party petitioner has chosen to sue upon the contractual obligation as was the case in Marquette Casualty Company v. Brown, 235 La. 245, 103 So.2d 269. As we view and understand the allegations of the third party petitioner before us, it asserts no more than the right of redhibition authorized by Articles 2534, 2545, and 2546, LSA-C.C.'

Thus, although Lewis might be questioned as resurrecting 'theory of a case' obstacles proscribed since 1961 by LSA-C.C.P. arts. 854, 862 and 2164 (and on its failure to treat as indemnity, see Minyard v. Curtis Products, Inc., 1967, 251 La. 624, 205 So.2d 422), nevertheless the ratio of Lewis itself was that the petition lacked allegations essential to any cause of action other than redhibition. That is not the case here.

In our opinion plaintiff's petition states a cause of action for breach of contract other than the contract of sale, and the claim is not prescribed.

Merits

On the merits, defendant claims it furnished carpeting in accordance with the specifications of plaintiff's architect, and that the carpeting wore out not because of any defect but because of lack of proper cleaning and maintenance.

Generally all experts agreed that the architect's specifications were suitable for carpeting for use in an establishment like plaintiff's. Defendant testified that, of the various samples he submitted in precontract negotiations, some were 'half the price of this and some a little more.' While there was some dispute as to the under-padding's suitability and the source of its specification, the preponderance of the evidence is that it is highly suitable and probably moreso than the padding plaintiff argues should have been used. (Evidence...