Walton v. Katz & Besthoff, Inc.

• Decision Date: 17 January 1955
• Docket Number: No. 20198,20198
• Citation: 77 So.2d 563
• Parties: John M. WALTON v. KATZ & BESTHOFF, Inc.
• Court: Court of Appeal of Louisiana — District of US

Page 563

77 So.2d 563

John M. WALTON v. KATZ & BESTHOFF, Inc.

No. 20198.

Court of Appeal of Louisiana, Orleans.

Jan. 17, 1955.

Rehearing Denied Feb. 14, 1955.

Writ of Certiorari Denied March 21, 1955.

Phelps, Dunbar, Marks & Claverie, Sumter D. Marks, Jr., New Orleans, for plaintiff-appellant.

Weiss & Weiss, New Orleans, for defendant-appellee.

JANVIER, Judge.

John M. Walton seeks to recover from Katz & Besthoff, Inc., $1,847.19 on a claim which, according to counsel for defendant, is an action in redhibition. The trial court found it to be an action in redhibition, and since the suit was brought more than one year from the time of the discovery of the defects and deficiencies in the paint which was bought by plaintiff from defendant, held that the action was prescribed in accordance with Article 2534 or Article 2546 of the LSA-Civil Code.

From the judgment dismissing the suit plaintiff has appealed.

Plaintiff alleges that in May, 1950, the defendant, Katz & Besthoff, Inc., advertised for sale in a local newspaper 'National Finishes All-Purpose White Paint,' and, in the advertisement, stated that the said paint was 'guaranteed 100% Mold and Mildew-Resistant All-Purpose White Paint.' Plaintiff alleges that for his home in Covington, Louisiana, he decided to buy paint 'which would guard against formation of mildew within an unreasonably short time;' that he read the advertisement above referred to and that the representations made therein were confirmed by an employee of defendant; that on May 26 1950, he purchased twenty-five gallons of the said paint at a cost of $58.97 and used this in painting his home in Covington; that on June 26, 1950 desiring to paint his daughter's home in Metairie, Jefferson Parish, Louisiana, he purchased an additional twenty-five gallons of the said paint at a cost of $58.98. He then alleges that his principal motive for buying the paint was his belief 'based upon the oral and written representations of defendant, that the said paint was perfect for the New Orleans climate and would prevent mold and mildew from forming;' that in September, 1950, he used some of the paint on his home in Covington and that the paint was applied by a professional painter carefully and in a workmanlike manner and in accordance with instructions printed on the label of the cans; that the cost of placing said paint on his home in Covington was $606.77.

He next alleges that the 'balance of the said paint' was applied to his daughter's home in Metairie by a professional house painter who applied it in a careful workmanlike manner, following instructions printed on the labels of the cans, and that this application was at a cost of $237.47. He then charges that in February, 1951, at about the time the painting of his daughter's home was completed, mildew began to appear on his home in Covington, and that shortly thereafter in May, 1951, mildew began to appear on his daughter's home in Metairie, and that mildew and mold on both houses have become unsightly and that it will cost $885 to remove the paint from both houses. He prays for judgment for the total amount spent for the paint, for its application and for its necessary removal, to-wit $1,847.19.

Defendant admits the sale of the paint, but denies the allegations as to the guaranty on the ground that 'they are not complete and the copies of the said ad are contradictory thereto.'

A plea of prescription of one year was filed and the controversy was submitted on this plea, which was sustained, with the resultant dismissal of the suit.

There is no doubt that the record sustains the allegations of plaintiff's petition as to the deficiencies and defects in the paint and the District Judge so found, for, in his reasons for judgment, he said:

'* * * While defendant was not the manufacturer, nor processor nor packager of the paint, defendant have an affirmative and independent warranty to plaintiff that that the paint was mildew-proof in the form of advertiesements in New Orleans newspapers. See Dugue v. Safety Oil Burners, Inc., La.App., 142 So. 161.'

He then correctly found that the suit had been filed more than two years after the date of the sale of the paint and more than one year after the discovery of the defects and deficiencies in the paint, and maintained the plea of prescription and dismissed the suit.

On behalf of plaintiff it is strenuously argued that the controversy is not controlled by the prescription of one year which is applicable to an action in redhibition, and that therefore neither Article 2534 nor Article 2546 of our LSA-Civil Code has any application; that the action is for damages for breach of contract and that the prescription which is applicable is that of ten years.

Our attention is particularly directed to two cases decided by our Supreme Court, each on facts substantially similar to those presented here. These cases are Henderson v. Leona Rice Milling Co., 160 La. 597, 107 So. 459, and Rapides Grocery Co., Inc., v. Clopton, 171 La. 632, 131 So. 734.

In the Henderson case, decided by our Supreme Court four years before its decision in the Rapides Grocery Company case, the plaintiff, inexperienced in rice planting, bought from the defendant eighty sacks of seed rice which was sold by sample and was referred to as Honduras rice. The rice was bought and planted in the early Spring of 1919. As the crop began to mature it was discovered that the rice was not pure Honduras rice but was a mixture of Honduras and other rices, and that the value of the resultant crop was $1 per barrel less than it would have been had it been all Honduras rice. On this difference in value alone it appeared that the plaintiff had sustained a loss of $1,107. In addition, it was shown that since the plaintiff desired to again plant Honduras rice, he was forced to buy his seed for the next season instead of using some of his own crop, and he alleges that he was thus forced to spend $1,600 which he would not have had to spend had his crop been the result of pure Honduras rice as warranted by the defendant. When he brought suit for additional losses he was met with a plea of prescription of one year and the contention that his suit was one in redhibition or quanti minoris, in either of which cases the prescription of one year would have been applicable.

It was contended that the suit was not in redhibition or quanti minoris but was for damages resulting from breach of contract and that consequently the applicable prescription was ten years. The Supreme Court said [160 La. 597, 107 So. 460] that the suit did not fall 'within either one of the classes named', that is, either redhibition or quanti minoris. As to the contention that the suit was one in redhibition the Court said:

'The plaintiff here could not have instituted the redhibitory action for the very obvious reason that the fact that the rice was not such as plaintiff thought he was buying, and as was represented to him by defendant's agent, was not discovered until long after the sale and after the rice had been...