Minyard v. Curtis Products, Inc.

• Decision Date: 11 December 1967
• Docket Number: No. 48515,48515
• Citation: 251 La. 624,205 So.2d 422
• Parties: E. F. .MINYARD v. CURTIS PRODUCTS, INC.
• Court: Louisiana Supreme Court

Page 422

205 So.2d 422

251 La. 624

E. F. .MINYARD v. CURTIS PRODUCTS, INC.

No. 48515.

Supreme Court of Louisiana.

Dec. 11, 1967.

Rehearing Denied Jan. 15, 1968.

Graham & Graham, Louis B. Graham, New Orleans, for plaintiff-appellant.

Bernard, Micholet & Cassisa, Paul V. Cassisa, New Orleans, for defendant-appellee, respondent.

SUMMERS, Justice.

This action was initiated when E. F. Minyard d/b/a Rockwood Insulation Company (Minyard) filed a 'Petition for Indemnity' against Curtis Products, Inc., (Curtis) on November 17, 1965. Curtis filed peremptory exceptions based upon pleas of prescription of one year for actions in redhibition under Civil Code Articles 2534 and 2546 and of ten years for personal actions under Article 3544. The trial court and the Court of Appeal have sustained Curtis' peremptory exceptions and have dismissed Minyard's suit. See Minyard v. Curtis Products, Inc., 192 So.2d 208 (La.App.1966). Writs were granted to review this action. 250 La. 104, 194 So.2d 99 (1967).

The sole issue presented for this Court's consideration is whether or not appellant's cause of action as set forth in the 'Petition for Indemnity' has prescribed under Articles 2534 and 2546 or 3544 of the Civil Code.

On March 3, 1953 the Housing Authority of New Orleans (HANO), as owner, entered into a construction contract with Pittman Construction Company (Pittman) for the construction of Section I of the Desire Street Housing Project (Project). For the purposes of this construction, Pittman entered into a subcontract with Minyard whereby the latter became bound for the application of caulking materials under Pittman's general contract with HANO. Minyard was to receive $3,000 for the work and for furnishing the materials. The subcontract restated those portions of the general contract which were pertinent to the required application of caulking materials; it read in part as follows:

'Caulking compound shall be Kuhl's Plastoid, Pecora, or equal. Compound shall be of proper consistency to be readily worked and not be affected by vibrations or long exposure to outside climate or temperature changes. Compound shall form a thin tough elastic film on surface but remain permanently plastic underneath * * *.'

In an effort to comply with the requirements of his subcontract, Minyard decided upon a 'regular Plastoid' caulking compound, which is not the name of a specific material, but, instead, is a generic term and the trade name of several grades of caulking compound manufactured by Plastic Products, Inc., and distributed by a subsidiary corporation Plastoid Products Company, Inc.

As required by the contract, Minyard submitted to HANO's architects a sample of the 'regular Plastoid' caulking compound, together with a chemical and physical analysis of the conpound which had been submitted to Minyard by Plastoid Products, Inc., from whom Minyard was buying the caulking compound. The analysis and representations concerning the compound submitted by Plastoid Products, Inc., had in turn been prepared by Plastic Products, Inc., the manufacturer from whom Plastoid Products, Inc., was to purchase the material for resale to Minyard.

In its transmittal of the analysis and representations concerning the compound to Pittman, Minyard endorsed the properties of the compound and guaranteed it would comply with the specifications.

The sample submitted by Minyard was approved by HANO's architects and Minyard commenced the caulking work. Shortly thereafter HANO's clerk-of-the-works noted that the caulking was beginning to pull away from the aluminum. This fact was brought to Minyard's attention, and it was suggested to Minyard that there be an inspection of the work by representatives of the caulking compound manufacturer. The manufacturer did inspect the work and stated that the 'pulling away' was not due to any defect in the caulking compound material. A supervising architect was called in, and he decided that the caulking was 'not too objectionable provided it didn't develop into anything worse.'

Minyard proceeded with the caulking job. Then on January 26, 1955 the clerk-of-the-works complained in writing to Pittman that 'the caulking used is pulling away from wood, brick, aluminum and iron and does not appear to be elastic underneath' and that it was not in compliance with the specifications.

Thereafter, at HANO's request, a test was run on a sample of the compound by the Pittsburg Testing Laboratory. The test revealed that the shrinkage of the compound was 23.55% Rather than the 8.9% Which had been certified by the manufacturer and endorsed and guaranteed by Minyard. Pittsburg Testing Laboratory also tested a sample of the caulking which had been applied on the houses by Minyard and found it to be hard on the surface but nonplastic underneath. It was also found that the caulking which Minyard had applied showed cracks ranging from hairline to 1/16 inch.

HANO, in compliance with the provisions of the general construction contract, caused the removal of the 'regular Plastoid' caulking compound and had it replaced with a suitable material. The cost incurred by HANO in correcting this defective condition amounted to $16,994.42.

On November 15, 1955, Pittman, the general contractor, filed suit against HANO, as owner, for materials furnished and work performed by Pittman in constructing the Project. HANO filed a reconventional demand against Pittman for the costs it had incurred in remedying the defective caulking job. Pittman, in a third party proceeding, prayed for judgment over against Minyard, its subcontractor, for the amount Pittman might be held to pay to HANO under the reconventional demand.

After trial the District Court held Pittman liable to HANO for $16,994.42 as HANO's cost for correcting the caulking work and gave judgment in favor of Pittman for this amount over against Minyard, the caulking subcontractor. The judgment was affirmed by the Court of Appeal (Pittman Const. Co. v. Housing Authority of New Orleans, 169 So.2d 122), and writs were refused in this Court, 247 La. 344, 170 So.2d 865 (1965).

Both courts found that the 'pulling away' and cracking were due solely to the fact that the 'regular Plastoid' caulking compound had failed to meet the requirements of the specifications. There was no question of improper workmanship on the part of Minyard, the subcontractor. Minyard's liability was predicated upon his endorsement and guarantee of the physical and chemical analysis and properties of the caulking compound.

Minyard satisfied the judgment against him by paying Pittman $24,100 on March 29, 1965. Minyard filed this present suit approximately eight months later on November 17, 1965 against Curtis the successor of Plastic Products, Inc., manufacturer of the caulking compound, for 'Indemnity' claiming the amount it, Minyard, had paid to Pittman, the costs and expense incurred in that suit, attorneys fees and the sum of $20,000 for loss of reputation and business due to the suit in which Minyard had been involved with Pittman and the Housing Authority. Minyard styled this claim 'Petition for Indemnity'. It seems also to be cumulated with a claim against Curtis Products, Inc., as the successor of Plastoid Products, Inc.

It was to this petition that Curtis Products, Inc., the successor of the manufacturer, interposed the pleas of prescription of one and ten years based upon the theory that Minyard's claim, although labeled a petition for indemnity, was in fact a suit for redhibition prescribed in one year under Articles 2534 and 2546 of the Civil Code. Alternatively, it is asserted that it is a suit for breach of contract and, as such, is a personal action prescribed in ten years under Article 3544 of the Civil Code.

The trial court found the prescription of one year under Articles 2534 and 2546 of the Civil Code applicable for it considered this to be a suit in redhibition between the buyer, Minyard, and the seller, Curtis as the successor of Plastoid Products, Inc., for which a remedy was provided by law which was prescribed in one year from the sale (La.Civ.Code art. 2534), or at the latest within one year from the discovery of the vice in the thing sold. (La.Civ.Code art. 2546). January 26, 1955 was found to be the date when the vice in the caulking compound was 'discovered' for it was on this date, it will be recalled, that the clerk-of-the-work called attention to the 'pulling away' of the caulking compound.

On appeal to the Fourth Curcuit the judgment was affirmed. The Court of Appeal announced, moreover, that because the suit was instituted on November 17, 1965, more than ten years after the cause of action accrued on January 26, 1955, recovery is barred by the prescription of ten years provided for in Article 3544 of the Civil Code.

We are of the opinion that a basic error occurred in both the trial court and the Court of Appeal brought about, perhaps, by the deceptive similarity in the names of Plastoid Products, Inc., and Plastic Products, Inc., two business corporations. Although one may have been the distributor of the products of the other, as Plastoid Products, Inc., was indeed the distributor of the products and of the caulking compound manufactured by Plastic Products, Inc., they must, nevertheless, in legal contemplation, be considered as separate entities Plastoid Products, Inc., being the seller of the compound to Minyard and Plastic Products being the manufacturer of the compound. Plastic Products, Inc., the manufacturer, had no express contractual relation with Minyard the buyer.

The confusion occasioned by the similarity in the names of these two corporations is further compounded by the fact that Curtis is the successor to both Plastoid Products, Inc., and Plastic Products, Inc. A suit against Curtis, the successor of Plastoid Products, Inc., the seller, by Minyard, the buyer, would therefore be subject to the pleas of prescription applicable to actions in redhibition advanced by...