S. P. Weaver Lumber & Supply Co. v. Price

• Decision Date: 17 April 1944
• Docket Number: 37282.
• Citation: 17 So.2d 917,205 La. 678
• Court: Louisiana Supreme Court
• Parties: S. P. WEAVER LUMBER & SUPPLY CO. v. PRICE et al.

17 So.2d 917

205 La. 678

S. P. WEAVER LUMBER & SUPPLY CO. v. PRICE et al.

No. 37282.

Supreme Court of Louisiana

April 17, 1944

Bryan E. Bush, of Shreveport, for appellants.

Cook Lee, Clark & Egan, of Shreveport, for appellee.

HIGGINS Justice.

This is an action by a materialman to recover from the property owners in solido, the sum of $4,632.01 (including extras of $454.33) for certain materials and labor furnished in the construction of a two story brick triple car garage apartment dwelling, and for recognition of its liens. The plaintiff alleges that it signed a guaranty, guaranteeing the faithful performance of the contract by the contractor, H. L. Baker who undertook to erect the building, but that the guaranty was not binding because it was entered into through error that the contract and specifications were altered by defendants without authority after the guaranty was signed; and that the guaranty was signed before the contract.

The defense is that the contractors, Baker and Callicoatt, did not carry out their agreement to erect the building for the sum of $3,000 for material and labor, in accordance with the plans and specifications, but abandoned the work; that the defendants then called upon the plaintiff, as guarantor, to complete the erection of the structure; that it refused to do so and the defendants had the dwelling completed at a cost of $1,042.10, leaving them indebted to the plaintiff for the difference between the amount of the contract price and the sum expended, or a balance of $1,957.90, which amount was tendered to the plaintiff and refused; and that the plaintiff is estopped from denying its obligations under the guaranty.

The trial judge was of the opinion that the guaranty was legally effective; that the plaintiff had failed to prove its claim of $454.33 for extras; that the evidence showed that the defendants were entitled to recover $570.53 of the amount of $1,042.10 expended by them to complete the building and, accordingly, entered judgment in favor of the plaintiff for the sum of $2,429.47, with legal interest from date of judicial demand and with recognition of a contractor's lien on the property.

The defendants appealed to the Court of Appeal of the Second Circuit, which held that the amount involved exceeded its jurisdiction and therefore transferred the case to this court. 14 So.2d 580.

The plaintiff answered the appeal here, requesting that the judgment be increased to the sum of $4,029.74, with recognition of the various labor and material liens filed by it.

On November 20, 1840, the defendants (husband and wife) as owners, entered into a written contract with H. L. Baker and A. M. Callicoatt, builders, to erect a two story brick triple car garage apartment dwelling for the sum of $3,000 for material and labor. On the same day, the plaintiff wrote the defendants a letter guaranteeing the faithful performance of the contract by Baker.

The plea of error by the plaintiff in signing the guaranty is predicated on the fact that its representatives were of the opinion that the unsigned specifications written out by Baker with a lead pencil were the ones to control the building contract and not the typewritten specifications signed by the contracting parties and three witnesses on November 20, 1940.

The evidence shows that the document written out by Baker with a lead pencil made its appearance for the first time after this suit was filed and had never been seen by the defendants until then. It appears that the typewritten specifications were drawn up in triplicate by Mrs. Price, one of the defendants, and copies thereof were given to the contractors and the plaintiff, who subsequently furnished the material for the construction of the building thereunder until the work thereon was abandoned by the original and subsequent contractor, Oscar Bartlett.

Our views are in accord with those of the trial judge that the guaranty was given to cover the typewritten specifications of November 20, 1940, and not the pencil memorandum specifications of Baker.

The plaintiff's contention that the contract and specifications were altered by the defendants after the guaranty was signed is not borne out by the evidence, but, on the contrary, the defendants proved that due to defective typing of the specifications and contract and omissions therefrom, it was necessary to make the corrections found therein in ink and that these corrections were made at the time the contract and specifications were prepared.

The plaintiff also contends that the guaranty is null and void because it was signed before the parties signed the building contract. The testimony shows that the plaintiff's representatives were familiar with the proposed contract and specifications and agreed to sign and furnish the guaranty, in order that the defendants would accept Baker's low or successful bid. Furthermore, it is difficult to understand how the plaintiff expects to be relieved of its obligations under the guaranty when its representatives knew that before defendants entered into the contract with Baker they were relying upon the guaranty for their protection and the plaintiff in no way indicated that it considered the guaranty in any way defective. It is too late after the parties have worked under the contract and guaranty for several months for the plaintiff to attempt to change its position, and thereby seriously prejudice the rights of the defendants. Therefore, the plea of estoppel is good. The holdings of the district judge in these respects are correct. United States Fidelity & Guaranty Co. v. Putfark, 180 La. 893, 158 So. 9; E. C. Taylor Co. v. New York & Cuba Mail S. S. Co., 159 La. 381, 105 So. 379; Bradford-Kennedy Co. v. Brown, 152 La. 29, 92 So. 723; Longenbaugh v. Louisiana Irr. & Mill Co., 129 La. 436, 56 So. 359; Ackerman v. Larner et al., 116 La. 101, 40 So. 581; French Market Ice Mfg. Co. of New Orleans, Limited, v. Dalton, 15 La.App. 115, 130 So. 122.

While the plaintiff claims $454.33 for extra work done in the construction of the building and filed an itemized statement and lien covering the same, its witnesses' testimony only covers items of $396.30. In the appendix to the brief the amount is stated to be $302.80. By comparing a great many of these items with the specifications and the contract, it appears that they were included therein. The remaining extra items covered faulty work installed by Baker and Callicoatt. Consequently, these items cannot be considered as extras and all of them were properly disallowed.

With reference to the cost of completing the building, the plaintiff contends that the original and subsequent contractors, Baker and Callicoatt and Bartlett Bros., respectively, practically completed the building in accordance with the plans and specifications. Its own witnesses, who examined the building, testified that it would cost between $100 and $150 to finish it. This was obviously an error because the cost of labor and material to paint the building amounted to the sum of $323.16. Two witnesses for the defendants stated that it would cost $850 and $1,042.10, respectively, to properly complete the work.

Baker and Callicoatt began the erection of the building but upon the repeated complaints of Mrs. Price, one of the defendants that they were not...