Duet v. Kiffe

269 So. 2d 534, 1972 La. App. LEXIS 6197
CourtLouisiana Court of Appeal
DecidedNovember 13, 1972
DocketNo. 9049
StatusPublished

This text of 269 So. 2d 534 (Duet v. Kiffe) 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
Duet v. Kiffe, 269 So. 2d 534, 1972 La. App. LEXIS 6197 (La. Ct. App. 1972).

Opinion

LANDRY, Judge.

Mrs. Elda P. Duet, Widow and Adminis-tratrix of the estate of her deceased husband, Elvin Duet (Appellant), appeals from a judgment rejecting and dismissing Appellant’s action to recover the sum of $52,-500.00 allegedly due by defendant, Edwin Kiffe, on a contract pursuant to which Appellant agreed to furnish certain labor and materials for the construction of a shrimp trawler, the Mister Kiffe, for defendant Kiffe. Defendant reconvened for the sum of $10,000.00 allegedly spent in providing work on the incomplete vessel which should have been finished by Appellant. Mr. Duet’s death occurred subsequent to trial. His widow has been duly substituted herein. The primary question is whether the verbal contract for the vessel was on a cost plus 15% basis with no limitation as to amount, as contended by Appellant, or whether, as claimed by defendant, the agreement was on a cost plus 15% basis subject to a limitation of $60,000.00 for the work and material to be furnished by Appellant, and an overall cost of $87,000.00, including the engine, masts, rigging and other equipment to be paid for by defendant, but installed by Appellant. The trial court found that the agreement called for a limitation of approximately $60,000.00 for the materials to be furnished and work to be performed by Appellant. We affirm.

Mr. Duet operated a shipyard at Galliano, Louisiana, for the building and repairing of [535]*535boats. Defendant, Kiffe, a commercial shrimper, operates a small fleet of shrimp trawlers. In August, 1966, defendant contacted Appellant and discussed construction of a steel hulled shrimp trawler 75 feet long and having a midship width of 22 feet and a bow height of approximately 19 feet. After consultation with Appellant and Appellant’s foreman-partner, Leonce Duet, plans for the vessel were drawn by Leonce Duet. In September, 1966, while defendant was at sea fishing, work on the vessel commenced. Upon defendant’s return, the work progressed with defendant in almost daily attendance at the shipyard when defendant was either not at sea or not otherwise engaged in attending to his affairs. In early February, 1967, work on the vessel halted, defendant having admittedly paid Appellant $55,000.00 of the contract price. When work on the vessel had stopped for two or three weeks, defendant removed the boat from Appellant’s shipyard to another shipyard where the trawler was eventually completed. At the time of removal, the boat was approximately 75% complete. Its main engine had not yet been installed, but most of its hull, cabin, electrical work, piping and insulation work was almost finished. Considerable gear, machinery and rigging to be furnished by defendant was aboard the vessel, but not yet installed by Appellant. On February 24, 1967, Appellant furnished defendant a statement showing costs incurred in the sum of $99,837.55, which together with 15% came to a total of $114,-813.70. Defendant requested an itemized statement. On May 1, 1967, Appellant presented defendant a final statement of costs (including 15%) in the sum of $116,500.00. Defendant declined payment. Appellant then instituted this action to recover the difference between the final statement of $116,500.00 and the $55,000.00 paid by defendant.

During the course of the trial, a partial compromise was reached between the parties. Pursuant thereto defendant paid Appellant the additional sum of $9,000.00 cash. In return Appellant surrendered to defendant certain materials and fabricated parts which Appellant had either ordered or manufactured for incorporation into the vessel. Pursuant to the compromise agreement, defendant dismissed his reconventional demand against Appellant.

It appears beyond question that during the construction of subject vessel, Appellant was simultaneously engaged in building a boat for a third party during the months of September and October, 1966. It is also conceded that whereas Appellant’s entire force and facilities were to be devoted to construction of defendant’s boat, during construction thereof, Appellant occasionally used some of his employees in performing work for third parties.

During the trial it developed that many of Appellant’s original records, such as daily time sheets, had been destroyed. To establish his claim for labor, Appellant sought to introduce in evidence reconstructed records consisting largely of checks paid to his various workmen including welders, carpenters, painters and sandblasters. These records were bolstered by ledgers kept by Appellant’s bookkeeper in which the daily time of the various workers was entered and kept. To establish material costs, Appellant sought to introduce in evidence numerous invoices for materials purchased while subject vessel was under construction. Appellant explained that he did not keep daily time logs and books since his canceled checks showing payment for labor satisfied the Internal Revenue Service for tax purposes. Appellant also conceded that his itemized statements took into consideration the relatively small amount of work Appellant had performed for third persons during the construction period. Needless to say, defendant strenuously objected to the majority of Appellant’s proffered records on the grounds, inter alia, the records were not originals and therefore amounted to hearsay. The trial court admitted some records outright and others on Appellant’s proffer after defendant’s objections thereto were sustained.

Appellant contends the trial court erred in (1) failing to require defendant to prove [536]*536the affirmative defense of a $60,000.00 limitation on the cost plus 15% contract and finding as a matter of fact that such a limitation was agreed upon; (2) rejecting Appellant’s tendered evidence of costs and failing to give proper weight to Appellant’s “reconstructed account book”, and (3) failing to find that Appellant bore the burden of proving his costs.

Appellant’s contention there was no fixed ceiling on the cost of the work Appellant was to perform is based on the following contentions: (1) There were no final plans and specifications for the vessel when construction was commenced, it being the intent of the parties to construct the vessel as desired by defendant; (2) defendant retained supervision and control of the construction process, and (3) as work progressed defendant made numerous changes which added to the cost of the work.

In support of his position, Appellant Duet testified in essence that when the matter was discussed no ceiling was placed on the cost of the vessel because there were no detailed plans and specifications for its construction. Appellant testified in essence that it was impossible for him to quote a limited price on the labor and material to be performed and furnished by him on a vessel without precise knowledge of all construction details and equipment which the owner intended to install. He also testified in effect that his job was to build whatever type of boat defendant wanted, and that he attempted to carry out defendant’s wishes in every detail because defendant was paying the cost plus 15%. Appellant also testified that defendant made numerous changes amounting to refinements of work ordinarily done on shrimp trawlers, or which called for material and equipment superior to that customarily installed on boats of that nature.

Defendant Kiffe testified that in August, 1966, he consulted Appellant concerning construction of a 75 foot trawler having a midship beam of 22 feet and a bow height of 19 feet. Details of the vessel were discussed with Appellant and Appellant’s foreman-partner Leonce Duet.

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Cite This Page — Counsel Stack

Bluebook (online)
269 So. 2d 534, 1972 La. App. LEXIS 6197, Counsel Stack Legal Research, https://law.counselstack.com/opinion/duet-v-kiffe-lactapp-1972.