Schamens v. Crow

• Decision Date: 01 October 1975
• Docket Number: No. 12705,12705
• Citation: 326 So.2d 621
• Parties: Maurice J. SCHAMENS, Plaintiff-Appellant, v. O. P. CROW, Defendant-Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 621

326 So.2d 621

Maurice J. SCHAMENS, Plaintiff-Appellant, v. O. P. CROW, Defendant-Appellant.

No. 12705.

Court of Appeal of Louisiana, Second Circuit.

Oct. 1, 1975.

On Rehearing Feb. 9, 1976.

Booth, Lockard, Jack, Pleasant & LeSage by Fred H. Sutherland, Shreveport, for plaintiff-appellant.

Thomas, Prestridge & Burchett by Dewey E. Burchett, Jr., Bossier City, for appellant, O. P. Crow.

Wilson & Veatch by Thomas A. Wilson, Shreveport, for appellant, Oliver Brooks, Inc.

Before PRICE, HALL and DENNIS, JJ.

PRICE, Judge.

This is an action by the purchaser of a residence seeking a reduction in the purchase price from the vendor-builder because of alleged inadequacies in the design and capacity of the air conditioning system.

O. P. Crow, a builder and developer, contracted to sell to Maurice J. Schamens, a residence which was nearing completion at 1822 Pluto Drive in Bossier City for the sum of $34,925.00. Plans and specifications for the home had been approved by the Veterans Administration and construction was in accord with the regulations of this agency.

During sales negotiations Schamens inquired if a utility room situated behind the kitchen could be connected to the air-conditioning system. Although Crow denies assuring Schamens this space could be properly cooled with the unit designed for the home, the air conditioning subcontractor was authorized to run a duct into this area.

Schamens accepted title to the property and moved into the home in February, 1972. During the following summer when the air conditioning system was needed, complaints were made by Schamens to Crow that the system was not properly cooling the residence. The air conditioning subcontractor who installed the system, Oliver Brooks, Inc., at Crow's request made several attempts to correct the situation. Again in the summer of 1973 Schamens continued to complain and Brooks continued to work on the system. In the late summer of 1973 Schamens employed a consulting air conditioning engineer, Keith L. Andrepont, who made an evaluation of the system and reported it was inadequate in capacity and design to properly cool the entire residence during periods of high outside temperature. He recommended the compressor and the air handler be replaced and certain modifications be made in the duct system to more properly distribute the flow of air to all parts of the residence.

Schamens thereafter in March, 1974, filed this action against Crow, seeking a reduction in the purchase price of $2,550.00, the amount alleged to be necessary to make the suggested changes. Plaintiff also seeks expenses, damages and attorney's fees in the sum of $2,815.00.

In answer to plaintiff's demands Crow denied liability and joined the subcontractor, Brooks, as a third party defendant, alleging that should he be held liable to plaintiff that he have judgment against Brooks for the same amount as he alleges Brooks contracted to provide an adequate air conditioning and heating system for the residence.

After trial on the merits the district court awarded plaintiff judgment against Crow for the estimated cost of correction, $2,550.00, and the sum of $315.00 paid for engineering services. Plaintiff's claims for damages and attorney's fees were denied. The expert witness fee of plaintiff's expert was fixed at $100.00. The court awarded judgment in favor of Crow on his third party demand against Brooks for these same amounts.

Plaintiff has appealed from the judgment insofar as it denied his claim for damages and attorney's fees and asks that the expert witness fee of Andrepont be increased.

Crow and Brooks have each appealed the judgment rendered against them, asserting the trial judge was in error in concluding on the basis of the evidence presented that plaintiff had shown the air conditioning system was inadequate.

On appeal third party defendant Brooks filed an exception of prescription of one year under La.C.C.Art. 2534.

We find no merit to the plea of prescription. Although more than one year elapsed from date of the sale and the filing of plaintiff's suit, there were numerous attempts by the seller, through his subcontractor Brooks, to correct the defects complained of which continued through the late summer of 1973. The jurisprudence provides prescription does not begin to accrue until the seller has abandoned all atempts to repair the defect. De la Houssaye v. Star Chrysler, 284 So.2d 63 (La.App.4th Cir. 1973), writ refused 286 So.2d 662 (La.1973); Domingue v. Whirlpool Corp., 303 So.2d 813 (La.App.3rd Cir. 1974).

The exception of prescription is therefore overruled.

The issues raised by the appeals of defendant Crow and third party defendant Brooks are substantially the same and relate to the correctness of the trial judge's finding that there was a vice in the thing sold to plaintiff which entitled him to a reduction in the purchase price. We shall discuss this issue first as the liability of Brooks on the third party demand and the remaining issues raised by plaintiff's appeal relating to damages and attorney's fees hinge on an affirmance of this finding of the trial judge.

Whether or not the air conditioning system was adequate is primarily a question of fact and the trial judge's finding in this regard should not be disturbed if there is substantial evidence in the record to support his conclusion.

There is no question raised in regard to the mechanical performance of the component parts of the air conditioning system. The issue is whether the air conditioning requirements of the subject residence were properly calculated and the appropriate size unit was selected to satisfactorily cool the residence in accord with the standards set forth by the Veterans Administration.

Plaintiff contends the system performs properly when outside temperatures are below 90 but when the temperature goes beyond 90 the system does not cool the living area of the house to a bearable temperature. This area consists of the kitchen, living room, one bedroom and the utility room.

Crow and Brooks contend the primary cause of plaintiff's dissatisfaction is the inclusion at this request of the utility room in the air conditioning system of the house. They contend the system as installed was sufficient to take care of the original plans and specifications and that plaintiff was informed that it might not be sufficient to cool the added area. The evidence is somewhat conflicting as to what assurance plaintiff was given in this regard. He testified Crow told him he checked with Brooks and Brooks said it probably would carry the utility area except when the laundry appliances were being used. Crow testified he told plaintiff it would heat the area but could not assure him it would cool it. Brooks testified he told Crow he could not guarantee the cooling of this added area.

We do not find it necessary to resolve this conflict as the evidence otherwise indicates the unit was inadequate for the residence without consideration of the utility room.

In support of his position plaintiff offered the testimony of the expert in air conditioning engineering, Keith L. Andrepont, who made a detailed analysis of the air conditioning requirements of the residence, using the standards set forth in 'Manual J' of the National Environmental System Contractors Association, which is the accepted manual for calculating air conditioning needs for VA approved homes. This manual requires a system which has the capacity to reduce the inside temperature to 75 when outside temperatures are 100 .

Andrepont calculated the heat load of the subject residence to be 37,407 BTUH's. In his opinion the minimum capacity for a unit to cool the home would be above 37,407 BTUH's.

Defendants offered the testimony of George Jambor, also a consulting air conditioning engineer, who tested and evaluated the system at the request of Brooks. In calculating the heat load of the house he used another recognized manual referred to in the testimony as 'ASHRAE'. He concluded the heat load of the residence, not including the utility room, was 33,211 BTUH's.

Andrepont gave consideration to the utility room in making his calculations but was of the opinion the system was inadequate without inclusion of this area.

In his reasons for judgment the trial judge, in according more weight to the opinion of Andrepont than defendant's expert, Jambor, was influenced by the fact that Jambor made his inspection of plaintiff's premises on a day when the outside temperature area was only 84 and that Jambor admittedly did not follow the provisions of the 'ASHRAE' Manual in all phases of his calculations.

The trial judge further found it significant that Brooks admittedly was in error in two respects when he calculated the air conditioning requirements for this residence--(1) in assuming...