Vance v. Emerson
| Decision Date | 12 October 1982 |
| Docket Number | No. 5-95,5-95 |
| Citation | 420 So.2d 1032 |
| Parties | John and Sharon VANCE v. Floyd EMERSON, D/B/A Carpet Corner. |
| Court | Court of Appeal of Louisiana — District of US |
Nelson J. Cantrelle, Jr., John J. McGuckin, Jr., Gretna, for plaintiff and appellee, John and Sharon Vance.
Gilbert P. Cohen, Gretna, for defendant and appellee, Floyd Emerson d/b/a Carpet Corner.
Robert H. Wood, Jr., Metairie, for defendant and appellant, West Point Pepperell.
Before SAMUEL, CURRAULT and DUFRESNE, JJ.
In April of 1978, the plaintiffs, John and Sharon Vance, purchased from the defendant, Floyd Emerson d/b/a Carpet Corner for the sum of $1,020.00, a carpet which was to be installed in the plaintiffs' home in Marrero. The carpet was originally selected from a sample and ordered by Carpet Corner from the manufacturer, West Point Pepperell, Inc., the third party defendant. At the time that the carpet was installed, the plaintiffs noticed that there was a difference in coloration in the various sections of the carpet. They attempted to get the defendant to remove the carpet which they found to be defective because of the discoloration.
After refusal, the plaintiffs instituted suit. They prayed for a rescission of the sale plus damages and attorney's fees for the redhibitory defects. The original defendant, Floyd Emerson, filed a third party demand against West Point Pepperell, Inc. seeking indemnity from the carpet manufacturer.
After trial on the merits, the trial court awarded the plaintiffs the sum of $1,020.00, together with legal interest plus attorney's fees in the amount of 25% and for all costs.
From this judgment, the third party defendant (West Point Pepperell, Inc.) has appealed and has raised the following issues:
1. The trial court was manifestly erroneous in concluding that the carpet was defective or unfit as a result of any process or actions of the manufacturer.
2. The trial court erred in granting indemnity to Floyd Emerson, d/b/a Carpet Corner.
3. The trial court erred in awarding a money judgment without correspondingly rescinding the sale.
4. The trial court erred in awarding to the plaintiffs anything more than a nominal reduction in the purchase price.
5. The trial court erred in excluding the opinion testimony of appellant's expert simply because he was an employee of a party to this suit.
As to the first issue raised on appeal, the Supreme Court in the case of Rey v. Cuccia, 298 So.2d 840, at 842 (La.1974) set forth the current state of our law in regard to actions in redhibition.
We conclude that the existence of a redhibitory defect is a question for the trial judge and should not be disturbed on appeal in the absence of manifest error. Clinkscales v. Superior Pontiac--GMC, Inc., et al., 365 So.2d 895 (La.App. 4th Cir.1978). Here, the trial judge clearly did not abuse his discretion and his decision was not manifestly erroneous under Canter v. Koehring Co., 283 So.2d 716 (La.1973) and its progeny.
The second issue on appeal is concomitant with the first. Once the trial court decided that the carpet sold had a redhibitory defect, it is well settled in our jurisprudence that the manufacturer is presumed to know of this defect in the thing made by him. Rey v. Cuccia, supra. Thus he is considered a bad faith seller and falls within the ambit of the following civil code provision.
"The seller, who knows the vice of the thing he sells and omits to declare it, besides the restitution of the price and repayment of the expenses, including reasonable attorney's fees, is answerable to the buyer in damages." La.C.C. Art. 2545.
Relative to this issue, the testimony presented at trial indicated that the plaintiff picked out the carpet he wanted by looking at samples of carpet in defendant's store. After the plaintiff picked out what he wanted, the defendant (Emerson) ordered the carpet from West Point Pepperell, Inc. The carpet arrived in a roll from the factory and was then brought to the plaintiff's home where it was installed.
When the trial court made a finding that the carpet sold to the plaintiff had a redhibitory defect, there was no doubt that the carpet being referred to was the same one which was shipped from the West Point Pepperell Factory to the defendant and ultimately to the plaintiffs. With regard to the nature of the defect, the testimony given by the witnesses was to the effect that the plaintiffs complained that certain sections of carpet did not match the coloration of the main ...
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Hatten v. Estes Cadillac, Inc., Civ. A. No. 83-3113.
...must afford it an opportunity to repair the defect before instituting an action in redhibition are inapt. Both Vance v. Emerson, 420 So.2d 1032 (La.App. 5th Cir.1982) and Starwood v. Taylor, 434 So.2d 1236 (La.App. 1st Cir. 1983) address the buyer's obligation to tender the thing sold. As n......
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