Red Arrow Sales, Inc. v. Dixie Motors, Inc.

• Decision Date: 22 November 1983
• Docket Number: No. 83-CA-0123,83-CA-0123
• Citation: 442 So.2d 570
• Parties: RED ARROW SALES, INC. v. DIXIE MOTORS, INC.
• Court: Court of Appeal of Louisiana — District of US

Page 570

442 So.2d 570

RED ARROW SALES, INC. v. DIXIE MOTORS, INC.

No. 83-CA-0123.

Court of Appeal of Louisiana, First Circuit.

Nov. 22, 1983.

Robert A. Anderson, Jr., Covington, for plaintiff-appellant.

Nita R. Gorrell, Hammond, for defendant-appellee.

Before LOTTINGER, EDWARDS and ALFORD, JJ.

EDWARDS, Judge.

The trial court denied plaintiff's main demand and granted defendant's reconventional demand for the rescission of a sale on the basis of redhibition and awarded damages and attorney fees. We affirm in part and reverse in part.

On November 18, 1980, Red Arrow Sales, Inc., hereinafter Red Arrow, sold to Dixie Motors, Inc., hereinafter Dixie, a used Worthington 5-brush car wash for $7,540.89. Under the terms of the contract the price included delivery and installation fees but did not include the cost of running utilities (air, water, and electrical lines) or the cost of pouring the slab or erecting the building to house the car wash.

Dan Durham, owner and general manager of Dixie, hired general contractor Carl Wainwright to prepare the slab according to the site plan prepared and provided by Cliff Walker, owner and general manager of Red Arrow. The site plan was a detailed sketch specifying the dimensions of the building to be erected and the thickness, texture and slope, or grade, of the slab to be prepared. Walker hired Roy Simoneaux to deliver and install the car wash on December 11. Because of delays in construction of the slab and the building, Simoneaux was unable to install the car wash until February 18, 1981.

On that date, the construction of the building and the slab were completed but the utilities were still unconnected. Simoneaux anchored the tracks to the slab, but when he placed the car wash on top, he noticed that the slope of the slab was too great for the machine to roll evenly on the tracks. He testified that the car wash, weighing over 4,000 pounds, must roll on level tracks bolted flush to the slab. In an attempt to remedy the problem, he welded a flat iron bar to the vertical side of the tracks.

On the 21st of February, he returned with Charlie Schellbach, the manufacturer of the car wash, to complete the installation and inspect the machine for operation. Schellbach discovered several problems with the machine in addition to the problems with track. One of the brushes had a faulty electric motor which caused the brush to spin at irregular intervals. One of the pneumatic air brushes would stick preventing a side arm from disengaging. Four rubber bumpers needed replacing. Several of the air and water pipes were leaking. He also suggested that Simoneaux replace the wheels with new larger ones to conform with the new higher tracks and to compensate for the high slope of the slab.

Consequently, Simoneaux returned again on the 26th of February to replace the faulty electric motor. He discovered a bad transformer, caused by low voltage, and replaced that on March 14. He had had to replace a second bad motor on March 7. He installed the new wheels on March 23. Cliff Walker accompanied him that day to clean the brushes and remove some undercoating that Durham had complained of. Durham also complained that the car wash would not wash compact cars, so Walker ordered a larger top brush, called a monster brush, on May 9. Simoneaux replaced that brush on May 15.

Because of these repeated repairs and modifications, Durham became completely dissatisfied with the car wash. He testified that although the car wash was used, Cliff Walker represented that the car wash was "like new," being only two years old. He said that when he first saw the car wash he was shocked by its outward appearance, being dirty, rusty, worn with use, with undercoating in the brushes. He said he expected the machine to be able to wash all the cars that his dealership retailed, but that it never successfully washed one car. According to Tony Marullo, Durham's former manager, the one time Dixie ever used the car wash it streaked the car paint and left undercoating on the tires. Accordingly, when Simoneaux returned on June 9 to widen the guide rails, Durham refused to let him do any more work on the car wash.

On June 16, Durham tendered the car wash to Cliff Walker and offered him $1,000.00 to take it back. Walker refused and on behalf of Red Arrow filed suit for recovery of the price, damages and attorney fees. Dixie answered and reconvened for the rescission of the sale, its own damages and attorney fees.

The trial court found that the car wash contained several redhibitory vices: It was rusty at seams and in corners and physically unsightly. One of the side arms would not disengage. Several parts, including two defective electric motors and a faulty transformer, had to be replaced. The brushes were worn and coated with undercoating. The track had to be modified; and the wheels, bumpers, shafts, and bearings had to be replaced. The court further found that "the purpose of the car wash was to clean every vehicle owned by Dixie Motors from large vans to small compacts," and that the only time the employees of Dixie operated the car wash it scratched a car.

The court also found that because it was necessary to overhaul, remake and assemble the equipment, Red Arrow fabricated the car wash, and was therefore a manufacturer within the meaning of LSA-C.C. art. 2545.

Based upon these findings, the trial court denied Red Arrow's main demands and awarded Dixie $2,330.00 damages in storage costs and $1,500.00 attorney fees. From this judgment, Red Arrow appeals, arguing essentially that the evidence is insufficient to support the trial court's findings of either redhibitory defects justifying a rescission of the sale ^* or a fabrication rendering Red Arrow liable as a manufacturer for attorney fees.

Redhibition is the avoidance of a sale on...