Hunter v. Wilson

355 So. 2d 39
CourtLouisiana Court of Appeal
DecidedJanuary 16, 1978
Docket6201
StatusPublished
Cited by14 cases

This text of 355 So. 2d 39 (Hunter v. Wilson) 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
Hunter v. Wilson, 355 So. 2d 39 (La. Ct. App. 1978).

Opinion

355 So.2d 39 (1978)

Edwin K. HUNTER, Plaintiff-Appellee,
v.
William F. WILSON, Jr., Defendant-Appellant.

No. 6201.

Court of Appeal of Louisiana, Third Circuit.

January 16, 1978.
Rehearing Denied March 1, 1978.

*40 Joseph Greenwald and W. Ellis Bond, Lake Charles, for defendant-appellant.

Camp, Carmouche, Palmer, Carwile & Barsh, by J. A. Delafield, Lake Charles, for plaintiff-appellee.

Before HOOD, CULPEPPER and FORET, JJ.

HOOD, Judge.

Plaintiff, Edwin K. Hunter, seeks a reduction in the price of a home which he purchased from defendant, William F. Wilson, Jr. He alleges as grounds for his demands that the roof of the building leaked, and that the heating and air conditioning equipment failed to function properly. The trial judge found that the roof was defective at the time of the sale, but that the evidence failed to show a vice in the heating and air conditioning equipment at that time.

Judgment was rendered by the trial court in favor of plaintiff, awarding him $2,845.00 as a reduction in the purchase price. Defendant appealed. Plaintiff answered the appeal, praying that the amount of the award be increased.

The issues are: (1) Was the roof of the building defective and, if so, was that defect apparent to the purchaser by simple inspection? (2) Was the heating and air conditioning equipment in that structure defective and, if so, was the defect of such a nature as to entitle plaintiff to a reduction of the purchase price?

Defendant Wilson owned a residence building in Lake Charles, which was constructed in 1950. He occupied it as his home from the time it was built until he moved out and offered it for sale in August, 1972. On October 16, 1973, after the building had been for sale and unoccupied for over a year, Wilson and Hunter entered into a buy and sell agreement under the terms of which Hunter agreed to purchase the property from defendant. An act of sale was executed by the parties conveying the property to Hunter on October 26, 1973. Hunter moved into the building with his family on November 2, 1973, and he has occupied it as his home since that time.

The home was constructed originally with a "built up" roof, which differs from an ordinary shingle roof in that it is covered with crushed marble, gravel or some type of crushed rock or brick, instead of with shingles. Wilson replaced the entire roof of the building in 1960, and at that time the new roof was constructed in the same manner as was the old one.

After the contract to buy had been entered into, but before the sale was completed, Hunter discovered a leak in the living room of the home near and on the east side of the fireplace, and he immediately called that fact to Wilson's attention. Defendant explained that the leak came from the flashing around the fireplace, and he assured Hunter that the condition would be repaired. Shortly thereafter the sale was completed and defendant began occupying the property.

About two or three weeks after Hunter had moved into the home, a rain occurred and in the course of that rain numerous leaks in the roof began to manifest themselves. Leaks appeared on the west side of the fireplace, and in the living room, the hallway and the bedroom of the house, and they were sufficient to make it necessary for plaintiff to place several pans on the floor in various parts of the house in order to catch the water as it dripped through the ceiling.

Hunter promptly contacted several roofing contractors, who examined the roof and *41 advised him that the roof would have to be replaced. Hunter then obtained bids from three roofing contractors, and he accepted the low bid of one of them, Jerome Korn, to have the roof replaced. Korn performed that work for plaintiff, and Hunter paid him $2,845.00 for the job. The record shows that bids were submitted by the contractors during the latter part of November, 1973, and that the roof was replaced by Korn on or about February 4, 1974.

Plaintiff informed defendant of the defective condition of the roof shortly after the defects were discovered. The record contains a copy of a letter which plaintiff wrote to defendant on December 31, 1973, advising him of the condition of the roof and of the fact that he was having it replaced.

The home which plaintiff purchased was equipped with a central heating and air conditioning unit. The heater was not used much during the winter of 1973, due to the mild weather which prevailed at that time. When plaintiff first used the heater some time after he moved into the house, he noticed an odor of oil being emitted from it, but he attributed that odor to the fact that the unit had not been used for a prolonged period of time. In February, 1974, the heater ceased to function. The fan would not run, and the unit produced no heat. Hunter did not have the heater inspected or repaired immediately after the above discovery was made, but instead, he simply did not use the heating unit during the last part of the winter season. In the summer of 1974, Hunter used the equipment to air condition and cool his home. During that summer he had the heating unit inspected and was advised that the heat exchanger had a crack in it and that the heat exchanger, the fan and the thermostat would have to be replaced. He thereupon had parts of the air conditioning and heating unit replaced or repaired by Moreno's Air Conditioning Service in the fall of 1974, at a cost of $1,279.90.

Hunter then made demand on defendant for a reduction in the purchase price of $2,845.00 for replacing the roof, and of $1,172.00 for repairing the heating unit, making a total reduction of $4,017.00. That demand was rejected by defendant, and this suit was filed on October 25, 1974.

The trial judge found that the roof was defective at the time the sale was completed, and that the defect was of such a nature that plaintiff was entitled to a reduction in the price of the house equal to the amount which he paid to have the roof replaced. He found that the evidence did not support plaintiff's other demands. Judgment was rendered in favor of plaintiff for the sum of $2,845.00. Defendant appealed, and plaintiff answered the appeal.

The law provides that the seller warrants the thing sold against hidden defects. LSA-C.C. arts. 2475, 2476. Hidden defects are those which cannot be discovered by simple inspection. LSA-C.C. art. 2521. If the thing sold has a hidden defect which renders it either absolutely useless, or its vice so inconvenient and imperfect that it must be supposed that the buyer would not have purchased it had he known of the vice, the purchaser may avoid the sale. LSA-C.C. art. 2520. Whether the defect in the thing sold be such as to render it useless, or whether it be such as merely to diminish its value, the purchaser may limit his demand to the reduction of the price. LSA-C.C. arts. 2541, 2542, 2543. In the instant suit plaintiff has demanded only a reduction of the price.

The trial judge found that the roof of the home purchased by Hunter leaked badly at the time of the sale, and that the defect in the roof was sufficient to entitle plaintiff to a reduction of the price. With reference to the roof, the trial judge said:

"Hunter proved the essential elements of the redhibitory action with respect to the roof. The roof was defective. It leaked badly. Its condition was described by three roofing experts who saw it shortly after the purchase. They testified it was in sore need of replacement. Whether it leaked much during the year before the sale is not known; no one lived in it for over a year. It was leaking immediately after the sale.

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Bluebook (online)
355 So. 2d 39, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hunter-v-wilson-lactapp-1978.