Harkins v. Howard Lumber Co., Inc.

460 So. 2d 772
CourtLouisiana Court of Appeal
DecidedDecember 14, 1984
Docket83-1086
StatusPublished
Cited by5 cases

This text of 460 So. 2d 772 (Harkins v. Howard Lumber Co., Inc.) 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
Harkins v. Howard Lumber Co., Inc., 460 So. 2d 772 (La. Ct. App. 1984).

Opinion

460 So.2d 772 (1984)

Jerry HARKINS, d/b/a Harkins Construction, Plaintiff-Appellee,
v.
HOWARD LUMBER COMPANY, INC., Defendant-Third Party Plaintiff-Appellant,
Port Barre Lumber Industries, Inc., Third Party Defendant-Appellant.

No. 83-1086.

Court of Appeal of Louisiana, Third Circuit.

December 14, 1984.

*773 Guglielmo & Lopez, James C. Lopez, Opelousas, Gahagan & Gahagan, Marvin F. Gahagan, Natchitoches, for defendant-appellant.

Kelly & Salim, Michael I. Murphy, Natchitoches, for plaintiff-appellee.

Before DOMENGEAUX, GUIDRY and KNOLL, JJ.

DOMENGEAUX, Judge.

Plaintiff brought this suit against Howard Lumber Company, Inc. seeking to recover damages which he suffered as a result of having purchased allegedly defective redwood siding. The defendant answered the suit and brought in as a third party defendant, Port Barre Lumber Industries, Inc., from whom the siding had been originally purchased. Port Barre filed an answer admitting that it did sell the redwood siding but denied that it had manufactured the lumber. After trial of the *774 matter the lower court rendered judgment in favor of the plaintiff and against the defendant, awarding him the following damages: (A) Total labor cost for putting new siding and removing old siding— $2,117.24; (B) Cost of interim financing— $5,024.55; (C) Original purchase price of redwood siding—$2,611.39; (D) Cost of replacement lumber from Rodney McNeal and Sons—$4,773.06; (E) Cost of removing old siding—$430.00; (F) Insulation damage due to removal of old siding—$201.60. The trial court also rendered judgment in favor of the defendant on its third party demand against Port Barre Lumber Industries, Inc.

Howard and Port Barre have perfected appeals claiming that the trial court committed the following reversible errors: (1) In finding that the redwood siding was defective; and (2) In awarding damages in excess of the original purchase price. Port Barre also claims the trial court was in error in granting Howard its third party demand.

Following the lodging of the appeals, Howard and Port Barre filed exceptions of prescription in this Court urging that the instant action was one in redhibition and had prescribed. The appellants claim that the siding was purchased in March and April of 1979, plaintiff discovered the defects in July of 1979, and the instant suit was not filed until February 24, 1981. It is thus the appellants' theory that plaintiff's claim had prescribed.

It is clear that redhibitory actions prescribe one year after the sale if the seller is in good faith. La.C.C. Art. 2534. Redhibitory actions prescribe one year after the discovery of the vice if the seller is in bad faith. La.C.C. Art. 2546. Under these articles suit must be brought within one year, at the latest, from the date of the discovery of the defects. Tidewater, Inc. v. Baldwin Lima Hamilton Corporation, 410 So.2d 355 (La.App. 4th Cir.1982).

Notwithstanding the above articles, we nevertheless find appellants' claim of prescription to be invalid because we do not view this case as one of a "defective" product. It is rather a situation where the seller promised to supply a product of a certain quality but instead delivered a product of a lesser quality. The testimony adduced at trial and the purchase invoice shows that the siding purchased was to be a "clear grade" of redwood siding. "Clear grade" is a term used by the industry to rank siding as to its quality, i.e., streaking, knot holes, etc.[1] The record firmly establishes that the siding delivered to the plaintiff was not of a clear grade but was rather of an inferior grade; therefore, the contract has been breached. The plaintiff has a cause of action to rescind the contract based upon this error regardless of any cause of action sounding in redhibition because of the "defective" nature of the product. Accordingly plaintiff's cause of action is governed by a ten year prescriptive period. La.C.C. Art. 3544.[2]

Applicable to the situation at hand is La.C.C. Art. 1931. That Article provides:

*775 "A contract may be violated, either actively by doing something inconsistent with the obligation it has proposed or passively by not doing what was covenanted to be done, or not doing it at the time, or in the manner stipulated or implied from the nature of the contract."

It can be readily seen from the above Article that a contract may impose upon the parties thereto obligations to do. Further:

"Classifications of contracts have occasioned the courts some difficulty where the contract includes aspects of the obligation both to do and to give. Where they are inseparable, generally one of the obligations must be determined as fundamental and the rules thereunder will control. 7 S. Litvinoff, La. Civil Law Treatise: Obligations Book 2, Section 158 at page 291. However, where the object provided is not that which is contracted for, redhibition does not apply.
In Victory Oil Company, Inc. v. Perret, 183 So.2d 360 (La.App. 4th Cir.1966), writ refused, the court noted succinctly that an action in redhibition is based upon a vice or defect in the thing sold. LSA-C.C. Article 2520. There the object contracted for was a specific type of diesel oil, but the oil delivered was a different type unsuitable for use in the buyer's trucks. The court determined that an action based on the delivery and failure of the wrong commodity was not an action in redhibition, but one for breach of contract and the ten-year prescriptive period applies. In Vico Concrete Company, Inc. v. Antley, 283 So.2d 830 (La.App. 2nd Cir.1973), the court cited Victory and distinguished its own facts, which involved contaminated concrete, from the Victory facts involving a failure to provide the specific product under the contract. See also PPG Industries v. Industrial Laminates, 664 F.2d 1332 (5th Cir.1982)" (Footnote omitted.)
The People's Water Service Company of Louisiana v. Menge Pump & Machinery Company, Inc., et al., 452 So.2d 752 (La. App. 5th Cir.1984), writ denied, 456 So.2d 1391 (La.1984).

In the case at hand as well as in Victory and People's Water Service Company, the defendant breached his contract by failing to provide the product contracted for. He breached his obligation to do, that being his obligation to deliver siding of a specified quality by providing the plaintiff with siding of an inferior nature. The applicable prescriptive period for such a breach is ten years under La.C.C. Art. 3544 and thus plaintiff's claim is timely. Further the breach of this obligation to do renders the seller liable for damages under La.C.C. Art. 1926 and 1928. Those Articles provide:

"Art. 1926.
On the breach of any obligation to do, or not to do, the obligee is entitled either to damages, or, in cases which permit it, to a specific performance of the contract, at his option, or he may require the dissolution of the contract, and in all these cases damages may be given where they have accrued, according to the rules established in the following section."
"Art. 1928.

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

Related

INS. STORAGE POOL v. Parish Nat. Bank
732 So. 2d 815 (Louisiana Court of Appeal, 1999)
Gulf States Utilities Co. v. IMO Delaval, Inc.
799 F. Supp. 619 (M.D. Louisiana, 1992)
Idacon, Inc. v. Arnold Construction Co.
537 So. 2d 1290 (Louisiana Court of Appeal, 1989)
Voitier v. Antique Art Gallery
524 So. 2d 80 (Louisiana Court of Appeal, 1988)
Perkins v. O'Neal's Feeders Supply, Inc.
463 So. 2d 81 (Louisiana Court of Appeal, 1985)

Cite This Page — Counsel Stack

Bluebook (online)
460 So. 2d 772, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harkins-v-howard-lumber-co-inc-lactapp-1984.