Boydstun v. Johnson

401 So. 2d 629, 1981 La. App. LEXIS 4236
CourtLouisiana Court of Appeal
DecidedJune 30, 1981
DocketNo. 8288
StatusPublished
Cited by5 cases

This text of 401 So. 2d 629 (Boydstun v. Johnson) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Boydstun v. Johnson, 401 So. 2d 629, 1981 La. App. LEXIS 4236 (La. Ct. App. 1981).

Opinion

BIENVENU, Judge.

Plaintiff building contractor and defendant owner entered into a contract for a concrete subterranean residence house. Defendant desired to build a house into the side of a hill and engage an architect, who associated a structural engineering firm, to draft plans and specifications. On December 12, 1978, the parties entered into a contract for $57,266.00 which called for plaintiff to construct the structural portion of the residence in accordance with such plans and specifications, defendant retaining responsibility for:

“The owner shall provide excavations, access road, fill under slab, rough excavation at footings, back fill and drain system.”

The contract provided for monthly billing. Construction apparently began promptly, and the first bill presented by plaintiff was on January 3, 1979 for $12,-000.00. On January 25, 1979, defendant paid $11,400.00 of this bill. Plaintiff again [630]*630billed defendant on March 13, 1979 for $16,-233.00; $12,000.00 of this amount was paid on March 26, 1979. Defendant justifies the deficiencies on the basis of over-billing, which plaintiff denies. In any event, as a result of these deficiencies, plaintiff left the job, both parties employed attorneys, and an amended contract was entered into on June 25, 1979. This amended contract provided that plaintiff would submit bills to defendant’s architect, who would inspect the work for completeness, not quality, then certify it for payment to a representative of the bank where defendant had his financial arrangements, who would issue payment. $6,218.10 was paid to plaintiff concurrently with the amended contract and as provided thereby; and the next bill for $5,843.90 of August 21, 1979 was promptly certified and paid.

The evidence is vague as to the events of the next several months, but the next billing was not until March 20, 1980 for $11,-934.40 (to bring payment to $51,267.70 of the total $57,266.00 contract price, being the amount plaintiff stated to be completed as of that date). For some reason, the architect calculated the project as being complete, deducted amounts he considered necessary to correct deficiencies in waterproofing, a damaged skylight and concrete rework in the sum of $8,310.20, took into account the amount previously paid, and certified payment in the amount of $9,622.50. When plaintiff presented the certificate for payment, however, he learned that defendant had withdrawn all monies from the bank and that there accordingly were no funds available for payment. Defendant had become increasingly disenchanted with plaintiff’s performance and knew that certification and payment would be made on the basis of completion. Not being satisfied with the quality and not wanting to pay until satisfied, he intentionally withdrew the money to ensure that payment could not be made. This action was consistent with a letter he had sent plaintiff on November 28, 1979 informing him that no more money would be paid until “the house is 100% complete”.

The major problem in the Spring of 1980 was with the waterproofing, but when plaintiff submitted his final bill on April 30, 1980 for the unpaid portion of the contract price, $17,932.70 (which included amounts previously certified and unpaid), it was certified for payment by the architect on May 9, 1980. The architect had personal reservations about the quality of the waterproofing work, but since the work had been performed and the manufacturer’s representative apparently had confidence in the system as installed, he approved the bill for payment. Of course, when the certificate was presented at the bank, there were no funds available for payment.

This litigation followed shortly afterward, plaintiff seeking the unpaid portion of the contract price and some allegedly agreed upon extras, in the total amount of $20,475.09; with defendant reconvening for an even larger amount in set-offs. After trial, the presiding judge found that plaintiff was entitled to the amount sued upon, but that defendant was entitled to set-offs in an identical amount. Plaintiff appealed, complaining of the set-offs, and defendant answered the appeal, not complaining about the award to plaintiff, but contending that he was entitled to an additional $4,799.91 in set-offs.

In his reasons for judgment, the trial judge correctly stated the applicable law, as follows:

“It is an uncontroverted principle, however, that contractors are held and bound by the law to do their job in a workmanlike manner and upon failing to do so, they are responsible for the amount required to remedy the defects they create. CC-2769, Merrydale Glass Works, Inc. v. Merriam, 349 So.2d 1315 (La.App. 1st Cir., 1977).
“However, the owner cannot simply take it upon himself to refuse to pay amounts admittedly owed the contractor.”

Stated another way, when there has been substantial completion and performance of a contract, the contractor is entitled to the contract price. If there is unfinished or defective work, the owner is entitled to [631]*631reduce the contractor’s recovery by the amount of the cost of completion or correction. The burden of proof of substantial performance is on the contractor; the burden of proof of unfinished work or defects and the cost of completion or correction is upon the owner. Cortiza v. Rosenblat, 291 So.2d 425 (La.App. 4th Cir. 1974); Jim Walter Corporation v. Laperouse, 196 So.2d 539 (La.App. 3rd Cir. 1967); North American Contracting Corp. v. Gibson, 327 So.2d 444 (La.App. 3rd Cir. 1957).

In applying the foregoing principle, however, the trial court in his reasons for judgment did not set forth the calculations he used to arrive at a set-off figure which equals to the penny the amount he found due to the contractor. We are unable to add up any combination of set-off figures adduced by the evidence which total the amount found to be due. We accordingly have no way of knowing whether the trial judge made a proper application of the previously announced legal principle which governs this situation in resolving the issues presented. We must, therefore, resolve these issues ourselves; and we will proceed to the task by a consideration of the evidence in light of the established law.

Initially, there is no real dispute between the parties that $20,475.09 is due the plaintiff, and we agree with the trial court that the evidence supports a conclusion that the plaintiff has borne his burden of proving substantial completion and performance of the contract. The strongest evidence in this regard is a vicarious admission on the part of defendant. The architect, defendant’s agent, certified that the work was complete and authorized payment of the balance due on the contract price. Huber v. Gordy, 9 La.App. 384, 120 So. 493 (Orleans App. 1928). Defendant’s structural engineer was also of the opinion that the job was completed as per the plans and specifications. We will now consider the items of set-off claimed by defendant and see whether he has proven them and the cost of remedying them. We must do this item by item for ourselves for we have no way of knowing precisely which items were found by the trial judge to have been proven, nor the cost of remedying assigned to each one. We cannot, therefore, say with much specificity whether he erred or was correct. We will just have to reach our own conclusions, for the most part, as to whether the defendant met his burden of proof. LSA — C.C.P. art. 2164. Popich v. Fidelity and Deposit Company of Maryland, 231 So.2d 604 (La. App. 4th Cir. 1970).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Iteld v. Four Corners Construction L.P.
157 So. 3d 702 (Louisiana Court of Appeal, 2013)
Gala v. Harris
77 So. 3d 1065 (Louisiana Court of Appeal, 2011)
Milan Gala v. Mark Harris
Louisiana Court of Appeal, 2011
Kinchen v. Gilworth
454 So. 2d 1130 (Louisiana Court of Appeal, 1984)
State v. Laconco, Inc.
430 So. 2d 1376 (Louisiana Court of Appeal, 1983)
Boydstun v. Johnson
404 So. 2d 1262 (Supreme Court of Louisiana, 1981)

Cite This Page — Counsel Stack

Bluebook (online)
401 So. 2d 629, 1981 La. App. LEXIS 4236, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boydstun-v-johnson-lactapp-1981.