Stewart v. Clay

• Decision Date: 27 May 1929
• Docket Number: 11,080
• Citation: Stewart v. Clay, 10 La.App. 727, 123 So. 158 (La. App. 1929)
• Court: Court of Appeal of Louisiana — District of US
• Parties: STEWART v. CLAY

123 So. 158

10 La.App. 727

STEWART v. CLAY

No. 11,080

Court of Appeals of Louisiana, Orleans

May 27, 1929

Appeal from the Twenty-fourth Judicial District Court for the Parish of Jefferson.Hon. L. Robert Rivarde, Judge.

Action by Samuel B. Stewart against C. C. Clay.

There was judgment for defendant and plaintiff appealed.

Judgment affirmed.

Louis E. Jung, of New Orleans, attorney for plaintiff, appellant.

Soloman S. Goldman, of New Orleans, attorney for defendant, appellee.

OPINION

JANVIER, J.

Plaintiff is engaged in this city, as a retailer of electrical and gas appliances, plumbing fixtures, stoves heaters, etc.During August, 1925, he entered into a written contract with defendant under which he agreed to lease to defendant and to install in a residence, which was then under construction, a Heatrola, which is a patented home heater.

Under the contract it was agreed that defendant should pay monthly rentals until a total sum of $ 175 had been paid, at which time, he should have the right, upon the payment of $ 1, to purchase the heater.

Both parties now concede that this contract, under the law and jurisprudence of this state, was in reality a contract of sale.

Defendant had made payments totalling $ 60, when, during December, cold weather having set in, he decided that the heater was unsatisfactory and would not produce the results required of it.He thereupon refused to continue the monthly payments.

Plaintiff sued for the balance stipulated in the contract and defendant, by reconventional demand, asked for the return of the amount paid.

Defendant contends that before he purchased the Heatrola, plaintiff and plaintiff's salesman represented to him that it was capable of heating his home to a uniformly satisfactory temperature, with a variation among the various rooms of not more than from three to five degrees.There was in the contract no stipulation whatever as to the capacity of the heater nor as to its ability to heat to a uniform temperature the building in which it was to be installed, and plaintiff contends that no evidence as to any such representation should be admitted or considered as the contract was in writing and such evidence would tend to vary or contradict it, in violation of the well-known rule against variation or contradiction by parol of written documents.

We cannot agree that the testimony with reference to the warranties as to the capabilities of the heater would tend to vary or contradict the provisions of the written contract because that contract was completely silent with regard thereto.Had it contained any reference to the ability of the heater to heat a certain number of rooms, or to its inability to heat more than a certain number of rooms, it might well be said the testimony as to other warranties would tend to...