Neel v. O'Quinn

• Decision Date: 21 April 1975
• Docket Number: No. 4967,4967
• Citation: 313 So.2d 286
• Parties: Maurice S. NEEL, Plaintiff-Defendant in Reconvention-Appellee, v. Tom O'QUINN, Defendant-Plaintiff in Reconvention-Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 286

313 So.2d 286

Maurice S. NEEL, Plaintiff-Defendant in Reconvention-Appellee, v. Tom O'QUINN, Defendant-Plaintiff in Reconvention-Appellant.

No. 4967.

Court of Appeal of Louisiana, Third Circuit.

April 21, 1975.

Rehearing Denied June 18, 1975.

Writ Refused Sept. 25, 1975.

McHale & Bufkin by Louis D. Bufkin, Lake Charles, for defendant-appellant.

Gary A. Book, Lake Charles, for plaintiff-appellee.

Before FRUGE , CULPEPPER and DOMENGEAUX, JJ.

DOMENGEAUX, Judge.

This is a suit by the plaintiff for damages for defective construction of a residence. The defendant-contractor filed a reconventional demand seeking the balance allegedly due under a building contract executed by the parties. From a judgment in favor of the plaintiff, in the sum of $5,680.00, the defendant has appealed. Plaintiff neither appealed nor answered the appeal.

On or about July 3, 1972, plaintiff and defendant entered into an oral building contract under which the defendant was to construct a house for plaintiff in Jefferson Davis Parish for an agreed price of $17,000.00. Of this latter sum the plaintiff made a $5,000.00 down payment directly to the defendant and borrowed the remaining $12,000.00 from Guaranty Federal Savings & Loan of New Orleans, with the latter actually retaining the loaned money and making subsequent partial payments to the defendant. ¹ According to the defendant the foregoing contract price excluded electrical wiring and painting. Plaintiff denied this allegation at trial but admitted that the parties later agreed that defendant would wire the house for the additional cost of $720.00. There were no written plans or specifications under the contract, with the exception of a rough, one-sheet floor plan or sketch showing the dimensions of the house and a front view. In this regard, however, plaintiff testified that previous to any agreement he visited several homes built by the defendant in Westlake, Louisiana, and at that time agreed to pay the defendant $17,000.00 if he would build a similar or like one for him.

Defendant began work on the house immediately following the agreement, pouring the concrete slab sometime early in July. Plaintiff testified that during the construction of the house he made numerous complaints to the defendant concerning a number of noticeable defects (which included the wall paneling in some areas not matching up with the wall studs) and his displeasure with certain other items, such as the type of ceiling being used in the construction. The defendant-contractor apparently made no effort at this time to repair the noted 'defects' or change any of the materials being used.

Prior to completion of the house the defendant left for Europe on vacation. This pending vacation was known by the plaintiff previous to contracting with the defendant and the contractor was apparently attempting to finish the construction before leaving. At this time, however, it was agreed between the parties that the defendant would finish the house upon his return, in addition to correcting some of the 'defects' noted by the plaintiff. The plaintiff and his family moved into the home sometime in mid-August. During defendant's absence, the plaintiff allegedly found a number of other 'defects' in material and construction, some of which were corrected by the plaintiff, or parties other than the defendant, shortly after the house became occupied. ²

Upon defendant's return in October, 1972, plaintiff again apparently made numerous complaints to the defendant to correct a number of the defects and deficiencies. The record reflects that defendant did make at least the following repairs and corrections: (1) changed septic tank to comply with Board of Health regulations as to size; (2) replaced all of paneling in one bedroom; (3) had an electrician change the main electrical breaker box to expand its capacity; (4) caulked an undetermined number of windows in one bedroom. Defendant also testified that in an effort to compromise (although denying he ever contracted to do so) he hired a painter and furnished the material to paint both the exterior and interior of the house. The contractor indicated that it was agreed between he and plaintiff to split the cost of the painting, but that plaintiff never paid his share. He further testified that he had a number of meetings with plaintiff and an attorney and that, as a result, he also attempted to move the hot water heater, which was in the utility closet, so the room could be used as envisioned. Plaintiff testified that the utility closet was constructed so small that the washer and dryer would not fit. The contractor further indicated that he had a roof leak fixed which was called to his attention.

Subsequently plaintiff's attorney in the present suit sent the defendant a letter on or about May 24th, 1973, listing plaintiff's complaints and certain defects and asking the contractor to repair them. Admittedly, after receipt of the letter defendant made no effort to remedy any of the defects.

This suit was subsequently filed on September 21, 1973. In plaintiff's petition thirty-one defects were listed. ³

As aforementioned, defendant filed an answer an reconvened, seeking $3,774.90 as the amount alleged to be the balance due under the building contract.

Two issues are presented to us on appeal. (1) Was the building contract 'substantially performed' by the defendant contractor? (2) If so, is the plaintiff-owner nevertheless entitled to recover damages for the defects shown in the home?

Applicable to the present case are the following legal principles:

It is implied in every building contract that the work of the builder be performed in a good workmanlike manner, free from defect either in material or workmanship. Nichols Ford Co., Inc. v. Hughes, 292 So.2d 345 (La.App.2nd Cir. 1974).

The basic law in regard to a contractor's liability for failure to properly perform a building contract is found in LSA-C.C. Art. 2769, as follows:

'Art. 2769. Contractor's liability for non-compliance with contract.

If an undertaker fails to do the work he has contracted to do, or if he does not execute it in the manner and at the time he has agreed to do it, he should be liable in damages for the losses that may ensue from his non-compliance with his contract.'

This codal provision has been construed by the courts to mean that when a contractor has 'substantially performed' a building contract, even though certain defects are present, he is entitled to recover the contract price, and the owner is relegated to having the price reduced by the amount necessary to perfect or complete the work, i.e . damages attributable to the breach. Airco Refrigeration Service, Inc. v. Fink, 242 La. 73, 134 So.2d 880 (1961).

In turn, if the building contract has not been substantially performed, the contractor's recovery is limited in quantum meruit. In the same regard, if the defects are such that cannot be corrected except by removing and replacing the construction, under the jurisprudence the owner may require the contractor to remove the object from his land and restore the premises to their prior condition. In addition, the owner is entitled to damages. National Water-Purifying Co. v. New Orleans W.W. Co., 48 La.App. 773, 19 So. 865 (1896); Toepfer v. Thionville, 299 So.2d 415 (La.App.4th Cir. 1974); Scott Fence & Insulation Co., Inc. v. Boudro, 252 So.2d 458 (La.App.4th Cir. 1971); Montague v. Milan, 67 So.2d 351 (La.App. Orl .Cir. 1953); Home Services v. Marvin, 37 So.2d 413 (La.App. Orl.Cir. 1948).

Thus the essential question for determination in a building contract suit is whether the contract has been substantially performed. The burden of showing same is on the contractor trying to recover the contract price or the balance due thereon.

Substantial performance is said to exist when the house (or other construction) may be used for the purpose intended even though certain defects or omissions in construction exist. Master Maintenance Engineering, Inc. v. McManus, 292 So.2d 284 (La.App.1st Cir. 1974); Jerrie Ice Co. v. Col-Flake Corporation, 174 F.Supp. 21 (E.D.La.1959), affirmed 278 F.2d 508 (5th Cir. 1960).

Whether or not there has been substantial performance is a question of fact. Among the facts to be considered include the extent of the defect or non-performance, the degree to which the purpose of the contract is defeated, the ease of correction, and the use or benefit to the owner of the work performed. Airco Refrigeration Service, Inc. v. Fink, supra; U-Finish Homes, Inc. v. Michel, 183 So.2d 101 (La.App.1st Cir. 1965), writ refused, 248 La. 1025, 183 So.2d 650 (1966).

Once substantial performance has been shown the burden of proof then shifts to the owner who must prove the existence and nature of the alleged defects, that they are due to faulty material and/or workmanship, and the cost of repairing the defects. Nichols Ford Co ., Inc. v. Hughes, supra; U-Finish Homes, Inc. v. Michel, supra.

After a trial on the merits in the present case, the district judge, in holding for the plaintiff owner, made the following findings of fact: (1) the final contract price was actually $17,720.00, i.e. $17,000.00 original price plus $720.00 agreed for electrical wiring; (2) the evidence supported 25 of the 31 defects listed in plaintiff's original petition; (3) the original contract did not include painting and therefore defendant would not be liable for any deficiencies in this regard; (4) proof was lacking as to the alleged defective slab and improperly installed air conditioning ducts; (5) some defects were not correctable, such as 'walls out of plumb'.

As a result of these findings, the trial judge concluded that the quality of materials used in the plaintiff's home was 'so inferior' and that the workmanship 'so shoddy' as to warrant the finding of lack of substantial compliance with the contract. Accordingly, it was held that the defendant would be entitled only to the sum of...