Toepfer v. Thionville
| Decision Date | 01 August 1974 |
| Docket Number | No. 6274,6274 |
| Citation | 299 So.2d 415 |
| Court | Court of Appeal of Louisiana — District of US |
| Parties | A. B. TOEPFER v. Paul C. THIONVILLE. |
Robert M. Caswell, Kronlage, Dittmann & Caswell, New Orleans, for A. B. Toepfer, plaintiff-appellant.
Frank E. Lamothe, III, Martzell & Montero, New Orleans, for Paul C . Thionville, defendant and plaintiff in reconvention-appellee.
Before GULOTTA, BOUTALL and SCHOTT, JJ.
This is a suit arising out of a contract to build a concrete tennis court. The contractor, A. B. Toepfer, filed suit against the owner, Paul C. Thionville, for the balance due under the contract. Thionville answered and filed a reconventional demand against the contractor contending that the tennis court was totally unusable due to faulty construction, that it was necessary to be removed, and asked for a return of the deposit paid on the contract as well as damages. In response to this, the plaintiff filed answer to the reconventional demand and brought third party proceedings against Eduardo Lucotti, an architect who presented the plans for the tennis court and assisted Thionville in handling its construction. The trial court rendered judgment in favor of the defendant owner dismissing the contractor's suit and awarding the owner return of the deposit plus damages on his reconventional demand. The third party proceedings were dismissed. From this adverse judgment, the contractor, Toepfer, appeals. It is the contention of the contractor that he did the work demanded in a competent, workmanlike fashion, and has performed all of the obligations under the contract with the exception of a slight finishing step, which he was prevented from doing by the owner. If there are any faults with the tennis court as constructed, these faults are due to the inadequacy of the plans and specifications that he was furnished and that he bid upon. He relies upon provisions of R.S. 9:2771 which provides that the contractor is not liable for destruction, deterioration or defects in the work, done according to plans furnished him, which he did not make or cause to be made, if the destruction, etc. was due to the fault or insufficiency of the plans or specifications.
As opposed to this, the owner contends that the plans were sufficient, but that the deterioration and defects are due to the improper workmanship and lack of expertise of the contractor. He relies upon the provisions of Louisiana Civil Code Articles 2762 and 2769 to the effect that a contractor is liable for damages for poor workmanship and noncompliance with his contract.
As we view the matter, the issue is basically a factual dispute. There was a contract between the parties based upon plans for a tennis court prepared by a friend of Lucotti's for a client in Picayune Mississippi. It is apparent that these plans and the terms of the contract itself do not supply all of the specifications necessary to the construction of a tennis court in accordance with the desires of the owner. It is equally apparent that there were attempts to orally agree on a number of particular specifications and that the breach of these oral agreements forms the basic issues here. We find it unnecessary to recite at length the entire testimony of the witnesses, except that we must note that in most cases there is a sharp conflict between the testimony of the witnesses for plaintiff and the witnesses for defendant. Instead, we shall examine each point of controversy.
The first point of controversy is the color of the tennis court. The plans merely specify a green color, and later it was agreed between the aprties that the color green should be that color selected by the owner. Accordingly, the owner, contractor and architect met at the site before the top layer of concrete was laid and when the first concrete truck arrived, it was halted and the color was added to the concrete mix until the pecise color was determined by the owner from samples poured from the truck. There is considerable dispute between the parties as to whether it was stated by the contractor that the concrete would dry lighter or darker than the sample, but we do not find this to be important. As we view it, the problem here is not that there is a lighter shade of green than desired, but that there is no uniform shade of green. It soon became apparent after the work was finished that the surface was mottled in appearance, that is, that there were patches of dark green, lighter green, and in some cases no green at all. The problems that a contractor may experience in achieving the precise shade of coloring desired, as well as the bleaching effect on that color by the elements in an exposed concrete...
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