Victory Oil Co. v. Perret

• Decision Date: 07 February 1966
• Docket Number: No. 2068,2068
• Citation: 183 So.2d 360
• Court: Court of Appeal of Louisiana — District of US
• Parties: VICTORY OIL COMPANY, Inc. v. Louis PERRET and Marion Perret, d/b/a L & M Transportation Company .

Page 360

183 So.2d 360

VICTORY OIL COMPANY, Inc. v. Louis PERRET and Marion Perret, d/b/a L & M Transportation Company .

No. 2068.

Court of Appeal of Louisiana, Fourth Circuit.

Feb. 7, 1966.

Rehearing Denied March 7, 1966.

Writ Refused April 15, 1966.

Adams & Reese, John T. Cooper, New Orleans, for defendants and plaintiffs in reconvention, appellants.

Dufour, Levy, Marx & Lucas, Leonard B. Levy, Michael Osborne, New Orleans, for plaintiff and defendant in reconvention, appellee.

Before REGAN, SAMUEL and BARNETTE, JJ.

BARNETTE, Judge.

Plaintiff-appellee, Victory Oil Company, Inc., hereafter referred to as Victory, brought suit against Louis Perret and Marion Perret, doing business as L & M Transportation Company, hereafter referred to as L & M, for $2,433.91 on an open account for diesel fuel sold and delivered to them between September 1, 1960, and November 11, 1960. Defendants answered admitting the delivery of diesel fuel, but alleged that it was not of the specifications and quality which had been ordered and agreed upon, and was not suitable for use in their trucks. They alleged that as a result their trucks were damaged in the amount of $11,380.79. They pleaded off-set and prayed for dismissal of plaintiff's suit.

On November 13, 1961, defendant L & M filed an amended answer and petition in reconvention alleging that a contract had been entered between them and Victory to purchase diesel fuel for their trucks. Prior to entering the contract, defendant had negotiated with Victory's representative in regard to the specific type oil suitable for use in their trucks, and they had agreed upon a certain type recommended by the representative. L & M further alleged that, in keeping with the contract, Victory made delivery of the type of diesel fuel agreed upon for a period of time, but thereafter, without the knowledge of L & M, began delivering diesel fuel of a different type. The substitute was unsuited for use in L & M's trucks and caused mechanical failure and serious damage. L & M prayed for judgment in reconvention in the amount of $11,380.79 for the damage and $13,000 for loss of use of the trucks during the period required to repair them.

In answer to the petition in reconvention, Victory admitted the contract to sell L & M petroleum products, but contended that they delivered the products specified in the contract. Victory, as defendant in reconvention, impleaded Bay Petroleum Corporation and Tenneco Oil Company, from whom it purchased the fuel delivered to L & M, as third party defendants and prayed for judgment against them for such amount as it might be cast in reconvention.

The third party defendants pleaded prescription of one year. The trial court, with written reasons for judgment, referred the exception to the merits, whereupon L & M, plaintiff in reconvention, took an appeal to this court. Its complaint on appeal was directed against the reasons given by the trial judge. This court sustained a motion to dismiss that appeal, pointing out that it was not concerned with the trial judge's reasons which formed no part of his judgment. We held the judgment appealed from was interlocutory and the appellant could not conceivably have been injured 'irreparably or otherwise'. See Victory Oil Co. v. Perret, La.App., 151 So.2d 565 (1963).

Upon remand for further proceedings interrogatories were propounded to L & M, and, among other facts, their answers revealed that the damage caused by improper fuel was discovered on November 8, 1960. A letter from L & M's attorney, filed as an exhibit, fixed the date of delivery of the improper fuel as November 3, 1960. Based on these facts, Victory and the third party defendants reurged the exceptions of prescription and Victory moved for summary judgment dismissing the reconventional demand.

After many delays and continuances, the exceptions and motion for summary judgment were heard and sustained, and the reconventional demand of L & M was dismissed. It is from that judgment that this appeal was taken.

In his reasons for the judgment from which the first appeal was taken, the trial judge found the reconventional demand was one in redhibition and subject to the prescription of one year either under LSA-C.C. art. 2534 or under LSA-C.C. art. 2546. This holding was the subject of L & M's complaint on the first appeal. This opinion was reaffirmed by the trial judge in the judgment maintaining the plea of prescription and granting the motion for summary judgment dismissing the reconventional demand. The dismissal was based on the facts disclosed by the interrogatories and the letter from L & M's attorney fixing the date of delivery of the improper fuel as November 3, 1960, and the date of the discovery of the damage as November 8, 1960. Since the reconventional demand was filed on November 13, 1961, more than one year after both the delivery and the discovery dates, the exceptions of prescription were maintained.

Our review of the record convinces us that L & M's reconventional demand is not an action in redhibition and that the prescriptive period of one year under LSA-C.C. arts. 2534 and 2546 is not applicable.

An action in redhibition is based upon a Vice or Defect in the thing sold.

'Redhibition is the avoidance of a sale on account of some vice or defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice.' LSA-C.C. art. 2520.

An action in redhibition must be commenced within one year from the date of the sale, LSA-C.C. art. 2534; or, if the seller knew of the vice, it must be brought within one year after the buyer's discovery of the vice. LSA-C.C. art. 2546.

Defendants in reconvention, in their attempt to bring the reconventional demand within the Codal Articles on redhibition have cited Crowley Grain Drier, Inc. v. Fontenot, 132 So.2d 573 (La.App.3d Cir. 1961), and rely on the following statement of the court:

'Ordinarily, as the defendants contend, the prescription applicable for damages caused by a breach of contract is not a one year prescription, but is rather the ten year prescription provided by LSA-Civil Code Article 3544. See American Heating & Plumbing Co. v. West End Country Club, 171 La. 482, 131 So. 466; Vicknair v. Rapides Parish School Board, La.App. 3 Cir., 128 So.2d 821. However, unlike damages for other contractual breaches, damages caused by a breach of the warranty in a contract of sale are regarded as founded upon redhibition and subject instead to the cited codal prescription of one year applicable to redhibitory actions. Rapides Grocery Co. v. Clopton, 171 La. 632, 131 So. 74; Walton v. Katz & Besthoff, Inc., La.App. Orl., 77 So.2d 563, certiorari denied.

* * * The historical reason for application of this shorter prescription period for claims for damages arising out of breaches of sales contracts, as compared with that applicable to damages for breaches of other types of contracts, is the practical...