Weaver v. Fleetwood Homes of Mississippi, Inc.
| Decision Date | 18 February 1976 |
| Docket Number | No. 5370,5370 |
| Citation | 327 So.2d 172 |
| Parties | Gene WEAVER, Plaintiff-Appellee, v. FLEETWOOD HOMES OF MISSISSIPPI, INC., et al.,Defendants-Appellants. |
| Court | Court of Appeal of Louisiana — District of US |
Lunn, Irion, Switzer, Carlisle & Salley by Jack E. Carlisle, Jr., Shreveport, for defendants-appellants.
Whitehead & McCoy by Charles R. Whitehead, Jr., Edwin Dunahoe, Natchitoches, for plaintiff-appellee.
Before MILLER, WATSON and CUTRER, JJ.
Plaintiff, Gene Weaver, sued defendants, Fleetwood Homes of Mississippi, Inc. and Bacon Mobile Home Sales, Inc., to rescind the sale of a mobile home purchased by plaintiff. Numerous defects were alleged as the basis for rescission. Judgment was rendered in favor of plaintiff. Defendants have appealed from that judgment, and plaintiff has answered the appeal requesting additional attorneys' fees for the services performed in connection with the appeal of the case. We affirm.
On November 13, 1972, plaintiff purchased from Bacon Mobile Home Sales, Inc. (hereinafter sometimes referred to as 'Bacon') a 1973 Fleetwood double wide mobile home. At the time of the purchase, neither plaintiff nor his wife had an opportunity to inspect or observe the mobile home; at the time it was being constructed by Fleetwood Homes of Mississippi, Inc. (hereinafter sometimes referred to as 'Fleetwood'). The purchase price for the home was $13,001.07. This price included all charges for delivery and installation of the mobile home on the Weaver property near Fairview Alpha, Louisiana. The home was delivered to plaintiff's property within one week after execution of the sale. Upon delivery of the home to the property the two halves of the double wide mobile home had to be attached to each other, and the mobile home had to be set up and leveled. During this assembly and installation, plaintiff's wife noticed several imperfections which she pointed out to the crew from Bacon that was setting up the home. She was informed that any problems in the home would be corrected. Subsequent attempts to make the necessary corrections were not successful and this litigation ensued.
Suit was filed in this matter on May 28, 1974. Plaintiff alleged the following vices and defects in the mobile home:
(1) The unit is unlevel.
(2) The two halves which make up the unit are not matched so that they will fit together, and one side is 1 1/4 inch or more out of line with the other side.
(3) The unit leaks.
(4) The roof is deteriorated.
(5) The metal skirting around the unit is unsightly and was damaged when installed, and also caused damage to the sides of the mobile home.
(6) The skirting around the unit was placed without any vents.
(7) The unit is pulling apart in the master bedroom.
(8) Air from the air conditioning goes through the heating unit.
(9) The air conditioning ducts need to be replaced and are falling apart.
(10) Carpet in the master bedroom does not fit and was not installed correctly.
(11) Knobs and pulls were left off of the furniture.
(12) Curtain rods were broken when the unit was set up.
(13) The front screen door does not fit and will not latch.
(14) The cabinet doors in the kitchen are not properly fitted.
(15) Trim work on the inside of the unit is not matched and some is missing.
(16) The eaves of the unit are sagging and are crooked.
Plaintiff prayed for a rescission of the sale setting it aside and granting plaintiff judgment against the defendants, in solido, for the sum of $13,001.07, together with legal interest thereon from the date of the sale until paid, and for all costs. Plaintiff further prayed for damages in the amount of $5,000.00, together with legal interest thereon. Alternatively, plaintiff prayed for a diminution of the price of the home by the sum of $10,000.00. An answer and third party demand was filed by Fleetwood on September 27, 1974, denying the allegations of plaintiff's petition. Alternatively, Fleetwood alleged that plaintiff was contributorily negligent in maintaining the mobile home, thus contributing to the defects present in the home. The allegation of the third party demand was that if the mobile home were damaged in any way, it was the agents or employees of Bacon who had caused the damage by improper installation after the unit was received from the factory. In the event Fleetwood was held liable to plaintiff for the defects alleged in the original petition, Fleetwood prayed for judgment in an equal amount against Bacon, or for contribution.
Bacon answered the main and third party demands with a general denial. An amended answer filed by Bacon alleged that, in the event the sale of the home was rescinded, it was entitled to a reasonable value for the use of the mobile home in an amount not less than $200 .00 per month. A third party demand was also filed by Bacon against Fleetwood praying for judgment in its favor against Fleetwood in the event that plaintiff's main demand against Bacon was granted. A request for attorneys' fees in the amount of $2,500.00 was also made a part of this third party demand.
A supplemental petition was filed by plaintiff alleging further defects, as follows:
(1) The floor in the hallway is weak and giving way.
(2) The floor covering which has been repaired is coming up again.
(3) The two trailer units, where joined, are pulling apart.
(4) The carpet in the living room is wet, holding moisture under the carpet.
(5) The walls through out the entire unit are not aligned properly .
(6) The floor in the living room at the front entrance is weak and loose, making a creaking sound when walked on.
(7) The floor under the hot water heater is giving way and the heater is falling through.
(8) The back door does not shut properly.
(9) The window on the back door is broken. Unsuccessful attempts to repair this have been made twice.
(10) The heating ducts underneath the two trailer units are bent and out of place, causing a lengthy delay in heating properly.
(11) The air conditioning ducts are coming apart and leaking, causing a lengthy delay in cooling properly.
(12) The siding on the exterior of the unit, especially on the corners, will not stay connected.
An additional amount of $5,000.00 for attorneys' fees was also requested. An amended answer was filed by Fleetwood requesting a credit for the reasonable value of the use of the unit in an amount not less than $225.00 per month, should the sale be rescinded. Pleas of prescription by Fleetwood and Bacon were referred to the merits. Following a trial on the merits, the trial judge rendered an opinion which stated that he accepted the testimony of Mr. and Mrs. Weaver and Mr. T. J. Stephens, and that the evidence as a whole supported plaintiff's claim in redhibition. He determined that plaintiff was entitled to rescission of the sale and a return of the purchase price, subject to a credit of $60.00 per month rental value . The pleas of prescription by Fleetwood and Bacon were overruled and judgment was rendered against both Fleetwood and Bacon, in solido, for the purchase price of the mobile home. In addition, plaintiff was awarded attorneys' fees against both defendants, in solido, in the amount of $2,500.00. Both defendants have appealed from that judgment, and the plaintiff has answered the appeals seeking an increase in the attorneys' fees to compensate his attorney for the services performed in connection with the appeal.
The first allegation of error on the part of the trial judge is with reference to the pleas of prescription by Fleetwood and Bacon. We find no error on the part of the trial court in this respect. With reference to Fleetwood, the manufacturer of the mobile home, there is a presumption of knowledge of a defect in the thing made. Radalec, Inc. v. Automatic Firing Corp., 228 La. 116, 81 So.2d 830 (1955); Tuminello v. Mawby, 220 La. 733, 57 So.2d 666 (1952). Under LSA-C.C. article 2534, the one year prescriptive period provided for in redhibitory actions does not apply where the seller has knowledge of the vice and neglects to declare it to the purchaser. Since the manufacturer is presumed to know of the defects in the product he manufactures, prescription does not commence to run in his favor if he fails to declare to the purchaser the defects in the product. In the present case, prescription never commenced to run in favor of Fleetwood.
Under the jurisprudence of this state, the prescriptive period provided in article 2534 does not begin to run until the seller abandons his attempts to repair the defect in the product he has sold. Williams v. Ford Motor Co., 307 So.2d 159 La.App. 1 Cir. 1974); Dominque v. Whirlpool Corp., 303 So.2d 813 (La.App. 3 Cir. 1974); De la Houssaye v. Star Chrysler, Inc., 284 So.2d 63 (La.App. 4 Cir. 1973); Kennedy v. Vidalia Home Service, Inc., 256 So.2d 827 (La.App. 3 Cir. 1972). The record in this case indicates that the mobile home was acquired by the Weavers on November 13, 1972. The testimony of the Weavers is to the effect that almost immediately they began having problems with the mobile home and requested both the vendor and the manufacturer to repair these defects. John Bacon, of Bacon Mobile Home Sales, Inc., testified that his employees made numerous service calls to the Weaver home in an attempt to repair the problems. On October 2, 1973, less than one year after the date of purchase, plaintiff mailed a letter to Bacon and Fleetwood specifying the defects still present in the home. John Bacon testified that he received the letter and contacted the Weavers informing them that all the problems would be remedied. Fleetwood answered the letter by a letter dated October 8, 1973, in which the Weavers were informed that Fleetwood intended to send a crew to correct any defects in the mobile home. This letter requested that plaintiff and his wife ascertain whether all of the defects were mentioned in the letter of October 2, 'because our crew will only be able to work on the items that you have sent us information on.'
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