Nichols Ford Co., Inc. v. Hughes
| Decision Date | 19 March 1974 |
| Docket Number | No. 12250,12250 |
| Citation | 292 So.2d 345 |
| Parties | NICHOLS FORD COMPANY, INC., Plaintiff-Appellee, v. V. Linton HUGHES, Individually and doing business as Hughes Engineering and Construction Company and the Travelers Indemnity Company, Defendants-Appellants. |
| Court | Court of Appeal of Louisiana — District of US |
Wright & Joyce by Patrick H. Wright, Jr., Monroe, for defendant-appellant V. Linton Hughes, Individually and d/b/a Hughes Engineering and Construction Co.
Theus, Grisham, Davis & Leigh by R. L. Davis, Jr., Monroe, for defendant-appellant, The Travelers Indem. Co.
Hayes, Harkey, Smith & Cascio, by Thomas M. Hayes, Jr., Monroe, for appellee.
Before AYRES, HALL and WILLIAMS, JJ.
At issue in this appeal is whether the plaintiff-owner, Nichols Ford Company, Inc., is entitled to recover from the defendant-contractor, V. Linton Hughes, d/b/a Hughes Engineering and Construction Company, and his surety, The Travelers Indemnity Company, the cost of repairing or replacing an allegedly defective roof and concrete floor in a prefabricated steel building constructed by Hughes for Nichols, and, if so, and amount of recovery.
The district court, in a comprehensive written opinion reviewing the facts and applicable law, found the roof and the concrete floor to be defective. The court awarded plaintiff $2,000 for the cost of repairing leaks in the roof; $201.50 for the cost of replacing ceiling tiles damaged by water leaks; and $10,500 for the cost of tearing out and replacing part of the concrete floor of the building; or a total of $12,701.50, subject to credit of $3,795 still owed by plaintiff on the contract price. Defendants appealed. Plaintiff answered the appeal, praying for an increase in the amounts awarded. We affirm the judgment of the district court.
There is little dispute as to the principles of law governing this case. It is implicit in every building contract that the work of the building be performed in a good, workmanlike manner, free from defects either in materials or workmanship. An owner seeking to recover from the contractor has the burden of proving both the existence and nature of the defects, that the defects are due to faulty materials or workmanship and the cost of repairing the defects. LSA-C.C. Arts. 2762 and 2769. See Rathe v. Maher, 184 So.2d 256 (La.App.1st Cir. 1966) writ refused 249 La. 201, 186 So.2d 159 (1966).
Plaintiff contends the metal roof has leaked continously from the time construction was completed in September, 1969, to the time of trial in October, 1972, and that since numerous attempts at repairs by the contractor have been unsuccessful, the entire roof should be replaced at an estimated cost of $17,490. Defendants contend plaintiff has failed to prove the roof is defective and that any leaks that exist can be repaired at a cost of not more than $1,000.
The testimony of plaintiff's president, Nichols, and several employees clearly establishes the roof has leaked at numerous and scattered locations thoughout the building on a continuing basis since construction was completed. Complaints were made to the contractor who made several attempts to repair the leaks, but leaks continued to appear.
Plaintiff offered no evidence as to the nature and cause of the leaks in the roof. Two expert witnesses estimated the cost of repairing the roof at $14,175 and $15,900, respectively, but neither witness examined the roof to determine the nature of the defects or the necessity of replacing the entire roof. One of the witnesses did express the opinion in answer to a hypothetical question that if a roof leaked continuously for three years and all efforts to repair it failed, then a new roof was the only answer. However, the question asked and the opinion stated are too broad and general to have significant probative value as to the necessity of replacing this particular roof. Plaintiff offered no evidence of the cost of repairing, as distinguished from replacing, the roof.
Defendants' expert witnesses who examined the roof testified it appeared to be properly constructed and in reasonably good condition. The thrust of their testimony was that the leaks could be repaired by locating the leaks with the cooperation of the owner, checking the roof in the area of the leaks for loose and stripped screws, tightening the loose screws and replacing the stripped screws with oversize screws, and caulking. One of the defendants' witnesses testified it might be necessary to replace some sheets of the metal roofing if the leaks could not be stopped in the manner described. One witness estimated the cost of repairs at $500 and another at $1,000, plus the cost of replacing any sheets if necessary.
The evidence does not establish the necessity of replacing the entire roof in order to correct the several leaks in it. The preponderance of the evidence is that the roof can be repaired. The only evidence as to the cost of repairing the roof is that presented by defendants. The district court awarded $2,000, in line with the highest estimate of defendants' witnesses considering the cost of additional material referred to by the witness and the increased cost of labor and material. The district court also awarded $201.50 for the cost of replacing ceiling tile damaged by water leaking through the roof. We find the awards to be fair and reasonable and in accord with the evidence.
The building is composed of a service or shop area, parts area, office area and showroom. The controversy concerning the concrete floor relates to the service area on the east side of the building, and the parts area on the west side.
The plans and specifications called for five sack concrete with 6 6 Number 10 gauge mesh with a 4 slab in the service area and a 3 slab in the parts area. After completion of construction, several cracks and flaking or spalling developed in both areas. In an effort to partially remedy the situation an area approximately 30 12 in the service area was torn out and replaced by the contractor with a new slab which has remained in good condition.
Plaintiff contends the concrete floor in both the service area and parts area is defective due to poor workmanship or inferior materials and should be torn out and replaced with a new slab at an estimated cost of $28,517.50. Defendants contend any defects in the floor in the service area are due to use by heavy trucks and equipment on a slab of insufficient width, for which defendants are not responsible because Hughes recommended a 5 slab to Nichols but Nichols insisted on a 4 slab to save costs. Defendants further contend that any defects in either area can be repaired by using a sealing and hardening process at a cost of approximately $1,200.
The evidence clearly establishes the existence of several cracks in the concrete floor in both the service and parts areas, the worst cracking being in the parts area. Many of the cracks go all the way through the slab to the base...
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