Musemeche v. G & J Mobile Home Service & Supplies

• Decision Date: 26 May 1982
• Docket Number: No. 8833,8833
• Citation: 425 So.2d 791
• Court: Court of Appeal of Louisiana — District of US
• Parties: Roger MUSEMECHE, Plaintiff-Appellee, v. G & J MOBILE HOME SERVICE & SUPPLIES and Winston Industries, Inc., Defendants-Appellants.

Page 791

425 So.2d 791

Roger MUSEMECHE, Plaintiff-Appellee, v. G & J MOBILE HOME SERVICE & SUPPLIES and Winston Industries Inc., Defendants-Appellants.

No. 8833.

Court of Appeal of Louisiana Third Circuit.

May 26, 1982.

Rehearing Denied July 26, 1982.

William H. Lambert, Lafayette, for defendants-appellants.

James E. Fontenot, Abbeville, for plaintiff-appellee.

Before GUIDRY, STOKER and LABORDE, JJ.

STOKER, Judge.

Plaintiff, Roger Musemeche, instituted this suit in redhibition to recover the price of a mobile home sold to him by defendant G & J Mobile Home Service and Supplies (G & J Mobile Homes) and manufactured by defendant Winston Industries, Inc. (Winston). Plaintiff's suit was against both G & J Mobile Homes and Winston. G & J Mobil Homes filed a third party demand against Winston. Judgment was granted in favor of plaintiff against G & J Mobile Homes for the purchase price of the mobile home, $21,840.00, and for plaintiff's attorney's fees of $1,000.00. Judgment was also rendered in favor of G & J Mobile Homes on its third party demand against Winston for any and all sums which G & J is liable for to the plaintiff.

The trial court's reasons for judgment indicated judgment should be granted in favor of plaintiff solely against G & J Mobile Homes. The only judgment against Winston was rendered in favor of G & J Mobile Homes on the third party demand. The formal judgment signed by the trial judge was in conformity with the reasons for judgment. Thus, there is no judgment in favor of plaintiff against Winston. Winston appealed suspensively from the judgment in favor of G & J Mobile Homes. G & J Mobile Homes appealed suspensively from the judgment in favor of plaintiff. The plaintiff did not appeal the trial court judgment for failure of the court to grant judgment in his favor against Winston. G & J Mobile Homes has never filed a brief in this court and no appearance was made on its behalf prior to the time the case was called for oral argument on the day the case was docketed, April 15, 1982. Under the circumstances, we consider that G & J Mobile Homes has abandoned its appeal. Under the provisions of Section 5(b) of Rule VII of the Uniform Rules of the Courts of Appeal we ex proprio motu dismiss the appeal of G & J Mobile Homes. ¹ In view of this dismissal the only appeal we have before us is that of Winston, the appeal of the judgment in favor of G & J Mobile Homes on the third party demand against Winston.

It is settled that a dealer-seller may have judgment over against the manufacturer of an item which the dealer sells when the sale is rescinded for redhibition. The right was specifically confirmed by the addition of the second paragraph of LSA-C.C. art. 2531 in 1974. As amended this article reads:

"The seller who knew not the vices of the thing is only bound to repair, remedy or correct the vices as provided in Article 2521, or if he be unable or fails to repair, remedy or correct the vice, then he must restore the purchase price, and reimburse the reasonable expenses occasioned by the sale, as well as those incurred for the preservation of the thing, subject to credit for the value of any fruits or use which the purchaser has drawn from it.

In any case in which the seller is held liable because of redhibitory defects in the thing sold, the seller shall have a corresponding and similar right of action against the manufacturer of the thing for any losses sustained by the seller, and further provided that any provision of any franchise or manufacturer-seller contract or agreement attempting to limit, diminish or prevent such recoupment by the seller shall not be given any force or effect."

The right has been discussed and construed in a number of recent cases and applies both to a rescission of a sale and to the lesser remedy of reduction in price. Lehn v. Clearview Dodge Sales, Inc., 400 So.2d 317 (La.App. 4th Cir.1981), writ denied, 406 So.2d 608 (La.1981); Dixon Enterprises, Inc. v. Restaurant Products, Inc., 389 So.2d 859 (La.App. 4th Cir.1980); Millin v. Dawson, 387 So.2d 1213 (La.App. 1st Cir.1980); Cernigliaro v. Marquis Marine, Inc., 381 So.2d 886 (La.App. 2nd Cir.1980); Riche v. Krestview Mobile Homes, Inc., 375 So.2d 133 (La.App. 3rd Cir.1979); Reeves v. Great Atlantic & Pacific Tea Co., 370 So.2d 202 (La.App. 3rd Cir.1979), writs denied 371 So.2d 835 (La.1979), 372 So.2d 568 (La.1979); Robertson v. Jimmy Walker Chrysler-Plymouth, Inc., 368 So.2d 747 (La.App. 3rd Cir.1979), writs denied, 371 So.2d 833, 834 (La.1979); Laughlin v. Fiat Distributors, Inc., 368 So.2d 742 (La.App. 3rd Cir.1979) and Daigle v. Robinson Bros., Inc., 368 So.2d 186 (La.App. 1st Cir.1979).

The posture of this case is somewhat unique in that plaintiff's judgment against G & J Mobile Homes is no longer at issue, but Winston is attacking the validity of that judgment because of G & J Mobile Homes' judgment over against Winston in its third party demand. In large measure therefore, the arguments on the issues are the same as those which would be made by G & J Mobile Homes if G & J Mobile Homes had pursued its appeal and was resisting the claims of the plaintiff.

In its appeal Winston sets forth four specifications of error in the trial court's judgment.

Winston alleges that the trial court erred in:

1. Failing to sustain Winston's motion to dismiss plaintiff's action to rescind the sale at the conclusion of plaintiff's case, as provided by LSA-C.C.P. article 1810, based on his failure to prove a redhibitory action under LSA-C.C. article 2520.

2. Failing to find the defects complained of were so minor in nature as to require a diminution in the sale price, rather than rescission of sale.

3. Failing to find the acceptance of $1,000.00 and execution of settlement agreement was final and defendants were released from further obligation of warranty.

4. Alternatively,

a. Failing to give Winston credit for the $1,000.00 payment against any judgment rendered against them.

b. Failing to grant Winston a credit for plaintiff's continued use of the mobile home.

Although Winston's answer alleged that the defects complained of did not result from the manufacturing process, the evidence does not sustain the defense, and Winston has not raised this issue on appeal.

FACTS

Plaintiff's evidence adduced at trial consists of brief testimonies by him and his wife of some of the problems they experienced with the home, photographs of water damage in the home, and an extensive handwritten chronological record or log kept by plaintiff's wife of the various defects as they occurred or were discovered in the home by the couple. This log was introduced into evidence and consists of the following complaints: extensive leaks in the roof in various parts of the home, including water leaks around the heater vent and the stove vent pipe; a defective fan in the stove vent which diverts cooking smoke into the home; toilets which are not bolted properly to the floor and are loose; a hole in the bathroom floor which admits air into the home; a shower door which will not close properly; a loose shower head in the shower stall; doors and storm doors which leak because they are not properly fitted; knobs on all fixtures which constantly come loose; and loose carpeting in some of the rooms which buckles and causes persons to trip.

Three witnesses testified for the defendants. The consensus of their testimony is that many of the problems plaintiff complained of have been corrected, although some problems still remain, such as the leaking around the vents and doors and the loose carpeting. Dennis Jones, the service manager for Sherwood Homes, testified that the remaining problems in the home except for the roof leaking could be corrected for the sum of $388.00. The two partners of G & J Mobile Homes who testified agreed with that figure, and one of them, Clement Gautreaux, estimated that the roof leaks could be fixed for an additional $200.00.

MOTION TO DISMISS UNDER LSA-C.C.P. ART. 1810 B

Defendant alleges that the first error committed by the trial court is its refusal to grant the motion for dismissal under LSA-C.C.P. art. 1810 ² made at the close of plaintiff's evidence. In two recent opinions of this Court, Semien v. P.P.G. Industries, Inc., 413 So.2d 956 (La.App. 3rd Cir.1982), and Burrell v. Kirkpatrick, 410 So.2d 1255 (La.App. 3rd Cir.1982), we held that in considering a motion to dismiss in a judge-tried case, the trial judge has a responsibility to weigh and evaluate all the evidence and render a decision based upon a preponderance of the evidence. We find that plaintiff established a cause of action in redhibition by a preponderance of the evidence showing substantial defects in the mobile home. Therefore, there is no merit in defendant's first specification of error.

REDUCTION IN PRICE IN LIEU OF RESCISSION OF SALE

Defendant Winston alleges as its second assignment of error that the trial court should have confined itself to granting plaintiff a reduction in the sale price of the mobile home rather than granting him a complete rescission of the sale and a return of the full sale price.

The Louisiana Civil Code articles relevant to our inquiry into this issue are as follows:

"Art. 2520. Redhibition is the avoidance of a sale on account of some vice or defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice.

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"Art. 2541. Whether the defect in the thing sold be such as to render it useless and altogether unsuited to its purpose, or whether it be such as merely to diminish the value, the buyer may limit his demand to the reduction of the price.

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"Art. 2543. The purchaser who has contented himself with demanding a reduction of the price, can not afterwards maintain the redhibitory action.

"But in a redhibitory suit, the judge may decree merely a...