Montague v. Milan
| Decision Date | 08 June 1953 |
| Docket Number | No. 20008,20008 |
| Citation | 67 So.2d 351 |
| Parties | MONTAGUE v. MILAN. |
| Court | Court of Appeal of Louisiana — District of US |
Adrian G. Duplantier, New Orleans, for appellant.
Henry G. Neyrey, Jr., New Orleans, for appellee.
This is a suit by plaintiff, Charles W. Montague, a subcontractor, against the defendant, Daniel A. Milan, the owner of the property and also an engineer, who acted, on this occasion, as his own contractor, for labor performed and material furnished to the defendant in the amount of $1,366.20.
Defendant answered and admitted the furnishing of labor and material, but denied that he was indebted unto plaintiff in any sum whatsoever and reconvened for the sum of $280 (corrected in brief to $270), representing money expended in correcting errors of construction caused by plaintiff. Defendant additionally requested that the court reserve unto him his right to recover damages from plaintiff for whatever loss he might, in the future, sustain as a result of the errors.
There was judgment in the court, a qua, in favor of the plaintiff in the amount of $1,056.20, which apparently recognized that part of the defendant's suit in reconvention demanding the sum of $270 and rejecting defendant's request for reservation of his right to recover damages from plaintiff for whatever loss he might sustain in the future as a result of the contractor's errors in construction. From this judgment defendant has appealed. Plaintiff has answered the appeal praying that the judgment be increased to the sum of $1,332.60.
The record reveals that defendant visited the offices of plaintiff, where he deposited a set of plans and specifications and requested a bid for the driving of piling, concrete foundation and slab work. Several days thereafter, plaintiff's superintendent, Mike Lanoux, having figured, in writing, the cost thereof, submitted a bid to defendant, which he admits he accepted. The bid offered to perform the following work:
'Drive 62-25 foot pilings at 8.50 527.00
Lay 265 feet of grade beam and caps (8 x 10) 556.50
Lay 1595 sq. ft. of slab 957.00
Subsequently, the slab work was cancelled by mutual agreement and, therefore, it is not an issue herein. After the piling had been driven and the grade beam laid, Lanoux discovered that he had laid 319 feet of grade beam in conformity with the plans instead of 265 feet as per the bid. Defendant concedes that plaintiff laid about 320 feet of grade beam, however, he asserts that he accepted plaintiff's bid without rechecking the plans to determine whether the measurements set forth in the quotation coincided with those in the plans. Lanoux' explanation is simply that it was an 'honest mistake', which defendant should not be permitted to take advantage of unjustly. In any event, plaintiff is requesting payment for 319 feet of grade beam, which is the lineal measurement of the beam actually laid. Lanoux made no mention of this additional 54 feet of grade beam until he rendered defendant a bill upon the completion of the work.
The foregoing facts relate to the original contract. Subsequently extra work was performed by the plaintiff, at the request of the defendant. He drove five additional pilings for which he charged the agreed price of $8.50 each, or a total of $42.50. He provided 52 feet of additional grade beam for a porch which was laid also at the request of defendant.
The record reflects a stipulation to the effect that insofar as the piling is concerned, they were properly driven and the number thereof furnished was 67, and that the additional grade beam was 52 feet (for the porch) and that the agreed price was $2.10 a foot or a total of $109.20.
Plaintiff also seeks to recover payment for sixteen 'pedestals' at a price of $2 each or a total of $32. Lanoux testified that these pedestals were ordered by the defendant's brother, Ed Milan, who acted in the capacity of defendant's superintendent during the course of the work. Ed Milan admitted that he ordered these pedestals, however, defendant refused to pay for them as he was of the opinion that they were 'caps' as reflected in the original quotation. Plaintiff testified that a 'cap' is a portion of concrete that encases the head of the pile. The purpose of the cap is to transfer the load of the beam to the pile. A 'pedestal' is a base for the superstructure. They are not synonymous terms. The 'cap' fits around and on top of the piling, the grade beam then fits on top of the cap and the pedestal fits on top of the grade beam, which is apparently admitted by defendant.
Our analysis of the complicated record causes us to understand that plaintiff is endeavoring to recover the following amounts for labor and materials furnished in connection with the contract and for extra work performed incicental thereto.
"For driving 62 pilings as called
for in original quotation 527.00
For driving 5 additional pilings
as extras 42.50
For laying 319 feet of grade beam
(265 ft. @ 2.10 a foot as called
for in original quotation and 54
additional feet at 2.10 a foot as
required by the plans) 669.90
For 52 feet of grade beam for
porch as extras 109.20
For 16 pedestals 32.00
-------
1380.60
Plaintiff concedes that defendant is entitled to a credit of $48 for material used and furnished by defendant. While he sued for $1,414.20 subject to a credit of $48, he now admits that he has only proved that he is entitled to $1,380.60, subject to a credit of $48, or the sum of $1,332.60, the amount he desires to recover in his answer to the appeal.
Defendant insists that he owes plaintiff nothing because plaintiff did not substantially perform the building contract, in that the concrete used in the grade beam did not test 2500 pounds per square inch and, therefore, failed to measure up to the specifications and, in addition, that plaintiff owes him damages of $80 for correcting an error in the level of the grade beam and $190 (he originally claimed $200) expended by him in strengthening the foundation; in the alternative, defendant asserts that even if plaintiff's performance was a substantial compliance with the contract, there is no doubt that plaintiff's work was not an actual compliance therewith and, therefore, defendant is entitled to recover damages which he suffered as a result thereof or the sum of $270; and, in any event, according to defendant's calculations plaintiff's recovery should be limited to the sum of $917.20 or $139 less than the amount awarded by the lower court.
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...in scope when compared with the job as a whole and concluded there had been substantial performance by the contractor); Montague v. Milan, La.App.1953, 67 So. 2d 351 (denied contractor's recovery of the contract price because the work was not in accordance with the contract and could not be......
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