Harleaux v. Wood

542 So. 2d 747, 1989 WL 35207
CourtLouisiana Court of Appeal
DecidedApril 13, 1989
Docket88-CA-2319
StatusPublished
Cited by2 cases

This text of 542 So. 2d 747 (Harleaux v. Wood) 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
Harleaux v. Wood, 542 So. 2d 747, 1989 WL 35207 (La. Ct. App. 1989).

Opinion

542 So.2d 747 (1989)

Eugene HARLEAUX and Roland J. Barbarin d/b/a H. & B. Contractors
v.
Thomas G. WOOD.

No. 88-CA-2319.

Court of Appeal of Louisiana, Fourth Circuit.

April 13, 1989.
Writ Denied June 2, 1989.

*748 Edward D. Wegmann, Anne Horton-Breaux, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, for plaintiffs-appellants.

M. Arnaud Pilie, Pilie, Pilie and Landry, New Orleans, for defendant-appellee.

Before BARRY, LOBRANO and WILLIAMS, JJ.

WILLIAMS, Judge.

Following the dismissal of plaintiffs' suit for liquidated damages because the trial court found no construction contract, plaintiffs filed this appeal claiming their bid proposal ripened into a construction contract after both parties signed the agreement so that defendant is liable under the liquidated damages provision of the contract for its rescission from the agreement.

This suit on a bid proposal/construction contract was tried before a commissioner, pursuant to LSA-R.S. 13:1171, who found that a contract existed between the parties and recommended to the district court that plaintiffs, Eugene Harleaux and Roland Barbian d/b/a H. & B. Contractors, be awarded the sum of $17,136.41 as liquidated damages under the contract, along with interest and costs. Defendant, Thomas Wood, filed his exceptions to this recommendation and, following its review of the trial transcript and parties' memoranda, the district court maintained defendant's exceptions and rendered judgment in favor of Wood, dismissing plaintiffs' demands at their cost. On appeal, plaintiffs contend that their August 29, 1985 bid proposal contains all the essential elements of a contract and ripened into a contract after both parties assented to its terms. We agree. The bid proposal contains all the essential elements of a contract, with a reasonable time for completion being implied by law. The document also contains a clause which provides that the agreement would not become a binding contract until plaintiff accepted it in writing. Therefore, when Wood signed the proposal, it became an offer that ripened into a contract upon H. & B.'s acceptance. Wood's subsequent attempt to recede from the agreement was a breach of contract rendering him liable under the liquidated damages provision.

FACTS AND PROCEDURAL HISTORY

Defendant, Thomas G. Wood, operates two bars at 901 Rue Bourbon, New Orleans. In 1985, he hired Leon Impastato, an architect, to represent his interests in renovating both the upstairs and downstairs bars. During July of 1985 Impastato *749 contacted plaintiffs, Eugene Harleaux and Roland Barbarin of H. & B. Contractors (H. & B.), requesting they submit a bid for Wood's construction project. Due to Impastato's forty year work relationship with H. & B., he knew that H. & B. had worked on the renovation of the premises fifteen years previously and would be familiar with the building. Consequently, Impastato did not seek bids from any other contractors.

After reviewing Impastato's plans and the construction site, H. & B. submitted to Impastato a two page bid proposal dated August 29, 1985. The proposal was to perform the work as detailed for the price of $85,682.07. The proposal also contained the following provisions:

This order shall become binding upon acceptance thereof by Contractor and shall not be deemed to be a bid in any sense of the word. However, upon acceptance of same by Contractor, it shall thereafter be treated as a contract between the undersigned owners and the Contractor.

Contractor to perform all work in good and workmanlike manner.

This agreement shall not be binding on Contractor unless properly accepted by the Contractor, by an officer or member of Contractor's firm, and is not subject to cancellation except by mutual written consent of all parties hereto.
Owner agrees that in event of cancellation of this contract before work is started, owner shall pay to Contractor on demand twenty (20%) per cent of the contract price as its liquidated damages for the breach.
It is further mutually agreed that this contract may be assigned by Contractor, and that where the term "Contractor" is used herein, it shall be construed to mean assigns, and that the terms and agreements herein contained shall bind, apply and inure to the heirs, assigns, successors, executor and administrators of the parties hereto.
Owner or owners hereby agree that at no time during the period of construction will they interfere in any way whatsoever with the performance of the work.
It is mutually agreed that should there be any alterations in the above contract, owner agrees to pay to Contractor any costs incurred by change.
The undersigned acknowledges receipt of a true copy of this contract, acknowledges that he has read and knows the contents thereof, and understands that no other agreement, verbal or otherwise, is binding upon the parties thereto, and that same contains the entire contract. (emphasis added)

Impastato forwarded this proposal to Wood and, after the two discussed the proposal, Wood signed the proposal on the line provided for the owner's acceptance. Wood then returned the document to Impastato who filed the original and mailed a photocopy to H. & B. Upon H. & B.'s receipt of the photocopy of the bid proposal signed by Wood, Harleaux signed the document and placed it in H. & B.'s file on Wood.[1]

About the time Harleaux signed the bid proposal for H. & B., the parties had already begun to discuss additional items (add-ons) that needed to be performed at 901 Rue Bourbon. On October 17, 1985, Impastato sent H. & B. an informal (hand-written) memo about add-ons and on October 29, 1985 he sent a formal (typed) memo about add-ons that provided:

I just spoke to Mr. Woods [sic] of 901 Bourbon street and there are a few items that he would like for you to add in your next bid.
1. Bar, up or down can not be closed more then four (4) days at one time.
2. How long it will take you to complete the job as he does not want it to run into Christmas and the new year.
3. Cost to install the brass rail and other items even though he is going to furnish brass. He wants to know how much *750 money needs for the complete job. (emphasis added)

On the bottom of this memo there was also a hand-written note from Impastato stating "we will begin the job on Nov. 11—".[2] However, as the November 11th commencement date was not agreeable to H. & B., Harleaux recommended to Impastato that renovations begin February 15, 1986, the day after Mardi Gras. During the same period of time, H. & B. telephoned to Impastato its pricing proposal for the add-ons. Impastato, in turn, communicated this information to Wood via letter dated November 8, 1985. This proposal for add-ons in the amount of $18,798.45 was subsequently submitted to Wood in a formal bid proposal on January 6, 1986.

The January 6th add-on bid proposal also contained the provision that the job required sixty (60) working days. When Wood received this add-on bid proposal, with its sixty working day provision, he was furious. He told Impastato that because he could not accept the sixty-day time frame, Impastato would need to look for another contractor.[3]

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Related

Keller v. Bones
615 N.W.2d 883 (Nebraska Supreme Court, 2000)
Harleaux v. Wood
544 So. 2d 405 (Supreme Court of Louisiana, 1989)

Cite This Page — Counsel Stack

Bluebook (online)
542 So. 2d 747, 1989 WL 35207, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harleaux-v-wood-lactapp-1989.