Olinde Hardware & Supply Co. v. Ramsey

• Decision Date: 19 November 1957
• Docket Number: No. 4501,4501
• Citation: 98 So.2d 835
• Parties: OLINDE HARDWARE & SUPPLY CO., Inc., Plaintiff-Appellee, v. John H. RAMSEY, Defendant-Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 835

98 So.2d 835

OLINDE HARDWARE & SUPPLY CO., Inc., Plaintiff-Appellee, v. John H. RAMSEY, Defendant-Appellant.

No. 4501.

Court of Appeal of Louisiana, First Circuit.

Nov. 19, 1957.

Rehearing Denied Dec. 23, 1957.

Major & Ponder, Baton Rouge, for appellant.

Sanders, Miller, Downing, Rubin & Kean, Roy M. Lilly, Jr., Baton Rouge, for appellee.

TATE, Judge.

This is a suit on an open account. Defendant answered, admitting the purchases, but reconvening for judgment for the excess over the account sued upon of the value of an air conditioner he had bought from plaintiff and paid for but had never received.

Defendant appeals from adverse judgment. We are presented solely with a question of law, since both parties stipulated that the facts shown in the trial court's reasons for judgment correctly reflect the evidence educed at the trial.

On February 7, 1951, defendant Ramsey bought two particular air conditioners from plaintiff store for a total consideration of $1,037.21 and paid for them on March 21, 1951. The equipment was to be retained by defendant store until Ramsey sent for them, Ramsey being about to build a new home. Ramsey purchased and paid for the equipment, although not intending to use it immediately, because it was sold at a bargain price.

Yoder, plaintiff's employee who confected the transaction with Ramsey, left plaintiff's service about two weeks after the sale was made. He recalled the transaction and that it was understood that defendant was not to take delivery of the air conditioners at the time of the sale. None of plaintiff's present employees have any knowledge of the sale, although defendant's invoice and bills from plaintiff reflect the purchase of the air conditioners 'to be delivered' and the payment therefor.

Construction of Ramsey's new home was greatly delayed. In September of 1951 he obtained delivery of the smaller unit for installation in his old home.

No further steps were taken by Ramsey until early in 1954, when noticing that plaintiff was holding a warehouse sale, he contacted plaintiff's present manager and employees about the remaining air conditioning unit he had paid for and left with plaintiff store. These employees did not have any knowledge of same, nor could it be located. These employees corroborate that they had several conferences about the lost machine.

In April or June of 1955 the defendant bought the appliances in the amount of $590.94 for which the present suit is instituted. He apparently thought that he was entitled to credit for the lost air-conditioning unit (the price of which had been $550 plus 3% Sales tax, or $566.50), but the District Court specifically found that there was no agreement to this effect.

This suit was filed November 20, 1956, and by reconventional demand filed December 17, 1956, Ramsey asserted his claim for the undelivered air conditioner since plaintiff store 'has never allowed any such credit for this merchandise which (it) still has in (its) possession or has misplaced, lost or sold to some other person.' Alleging that the replacement cost of the undelivered merchandise was $772, Ramsey prayed for judgment for the excess thereof over the amount plaintiff store had sued for.

The District Court specifically found that Ramsey had never received the air conditioner he had paid for, and also that the store had absolutely no knowledge what had happened to it. The District Court found that the legal relationship of depositor and depositary had been created by plaintiff's agreement to retain the goods by defendant until he called for them, specifically citing LSA-Civil Code, Article 2930:

'The deposit is perfected only by the delivery, real or fictitious, of the thing deposited. The fictitious delivery is sufficient, when the depositary is already possessed, in some other right, of the thing agreed to be left in deposit with him.'

The District Court concluded:

'Considering the evidence here in the light most favorable to defendant, it shows, in my opinion, that plaintiff wrongfully took and appropriated the air conditioner to its own use. This does not appear to have been done willfully or fraudulently, but through error and negligence. This gave defendant an action for damages as for a tort or a quasi offense, and the prescription of one year applies to and began to run from the date of the injury. LSA-Civil Code, Articles 3536, 3537; Carter-Allen Jewelry Co. v. Overstreet, 165 La. 887, 116 So. 222. When the injury here actually occurred we do not know, but the defendant had knowledge of it in January or February 1954, and the prescription of one year began to run at that time. McGuire v. Monroe Scrap Material Co., 189 La. 573, 180 So. 413.' (Italics ours.)

The chief legal issue before this Court is whether defendant Ramsey's demand in reconvention for the value of the air conditioning unit he had paid for is prescribed in one year as is a quasi-delictual action under LSA-Civil Code, Articles 3536, 3537, or in ten years as a breach of a contractual obligation under LSA-Civil Code, Article 3544. If the longer prescriptive period is applicable, Ramsey is entitled to credit for the unit purchased and not delivered; if the shorter, he is not, and the District Court correctly refused him credit.

We think our learned brother below fell into error in applying the shorter limit.

The Carter-Allen Jewelry case relied upon specifically pointed out in applying the one-year limit that the action was Not one 'growing out of any contractual relations between the plaintiff and the defendant', 165 La. 888, 116 So. 223--as is the present case. (The McGuire case cited was a suit against the receiver of stolen goods, and likewise did not involve any contractual relationship between the parties.) We do not think the reconventional demand to be grounded upon tort, as so ably argued by counsel for the appellee.

Even had the petition in reconvention contained allegations that Ramsey's property left in the possession of the plaintiff store was negligently lost or destroyed by the latter--which it does not--, this would not necessarily have converted a suit for the breach of the contract (either of sale or deposit) into a tort suit, and the ten-year rather than the one-year prescription would apply. Lafleur v. Brown, 223 La. 976, 67 So.2d 556; C. W. Greeson Co. v. Harnischfeger Corp., 219 La. 1006, 54 So.2d 528; American Heating & Plumbing Co. v. West End Country Club, 171 La. 482, 131 So. 466. Cf. the latter case's summary, 131 So. 469: 'If the action is purely one in tort, then it is prescribed by one year. If the action is predicated on a breach of the contract, then it is only prescribed in ten years.'

We think that the reconventional demand is grounded on the breach of the plaintiff store's contractual obligation to deliver defendant Ramsey's air-conditioning unit bought from and deposited with it. In our opinion, the duties of the store are set forth, as the District Court concluded, not only by the articles regulating 'Sale', Article 2438 et seq., but also by those regulating 'Deposit', Article 2926 et seq. We do not think the articles to be inconsistent.

(We might add, although we do not think this requires discussion, that neither sales nor deposit agreements are required to be in writing: Cf., LSA-C.C. Article 2441: 'The verbal sale of all movable effects, whatever may be their value, is valid * * *.'; LSA-C.C. Article 1816, '* * * If an offer is made of an article in deposit, and the article is received, the contract of deposit is complete. * * *')

In a contract of sale, 'The seller is bound to two principal obligations, That of delivering and that of warranting the thing which he sells,' Article 2475, LSA-C.C. (Italics ours.)

The appellee store correctly urges that the two following codal articles pertaining to sales are also applicable:

'Art. 2468. Until the thing sold is delivered to the buyer, the seller is obliged to guard it as a faithful administrator; and if, through want of this care, the thing is destroyed, or its value diminished, the seller is responsible for the loss.'

'Art. 2469. The seller is released from this degree of care, when the buyer delays obtaining the possession; but he is still liable for any injury which the thing sold may sustain, Through gross neglect on his part.' (Italics ours.)

We think that the appellee store correctly argues that the seller is only liable when the thing left in his possession at the request of the buyer is lost or destroyed through gross neglect upon his part.

Parenthetically, this is the standard of care applicable to bailments for the sole benefit of the bailor, 8 C.J.S. Bailments § 28, p. 278 (whereas the standard in bailments for the mutual benefit of the bailor and bailee is that of ordinary care, Id., § 27, p. 269, and for the sole benefit of the bailee, that of great care, Id., § 29, p. 280.) The common law bailment is analagous to, but not necessarily identical with, the civil law deposit.

The standard of care of the depositary under our Code is regulated by Article 2937, which is 'to use the same diligence in preserving the deposit that he uses in preserving his own property', and by Article 2938, which provides that this obligation is rigorously enforced in certain instances, as when the deposit is made solely for the depositary's own advantage. (This latter is equivalent to the standard of care exacted of the bailee-depositary in bailments for his own sole benefit.)

In interpreting codal articles, we must bear in mind that 'The Code is a general system of law promulgated by legislative authority, and effect must be given to all its provisions as such. Its various articles forming parts of a complete system must be construed with reference to each other and to harmonize with its general purpose,' Lowe v. Home Owners' Loan Corp., 199 La. 672, 6 So.2d 726, 730. Thus we see no inconsistency between LSA-Civil Code, Article 2937, providing that ordinarily the...