Harry Borrosky v. Hill, Harris & Co.

ODOM, J. Plaintiff sues defendant for the sum of $315.00, alleged to be due on account of defendant’s failure to complete in a workmanlike manner a residence which defendant had contracted to build for him. He alleges that defendant was to erect the residence in a workmanlike manner and deliver the same to him in good condition, [432] but, he says, the roof was bad and leaked and that it will cost $275.00 to repair it, and, in .addition, the paper in the house was damaged by water to the extent of $25.00, and that defendant failed to complete some bookcases and some papering, the estimated cost to complete them being $15.00. Defendant in answer set up that it completed the building according to plans and specifications and denied that it is due plaintiff anything. And assuming the position of plaintiff in reconvention, it alleges that the plaintiff did, during the construction of the building, order and direct certain changes and alterations in the work and ordered some fixtures more expensive than originally contemplated, and that the total charge for extra work and extra fixtures amounted to the sum of $172.96, for which amount it reconvened and asked for judgment. The trial judge found that defendant is due plaintiff the sum of $65.00, and that plaintiff is due defendant the sum of $164.05, and rendered judgment accordingly. Plaintiff has appealed. Defendant, plaintiff in reconvention, answers the appeal asking that plaintiff’s demand be rejected in toto and that otherwise' the judgment be affirmed. ON THE PLEA OF ESTOPPEL Defendant sets up the plea of estoppel as against plaintiff’s demands based on the fact that plaintiff moved into the residence and used it long before any claim was made for damages on account of defective workmanship or materials. We do not think the plaintiff estopped himself to claim damages on account of his moving into the house. There is nothing to show that he made formal acceptance of the work and specially approved the roof, which he now claims is bad. Hé had a rigfit to go into the house. He .was already .in possession of it by virtue of the fact that it was built on his land. He who possesses lots or lands possesses also houses erected thereon. Furthermore, failure of the defendant, contractor, to do the work in a workmanlike manner and to construct the residence in accordance with the specifications was an active violation of his contract, and the moving into and using of the house by plaintiff cannot be considered a discharge of defendant’s liability to respond in damages in case it should develop that the work is defective. If the point raised by counsel for defendant be well taken, an owner of real estate . could be deprived of taking possession of his own property, in ■ cases of this kind, until and unless he chose to waive his right to require a building contractor to repair defects in the building. Such is not the law. See Edward Comoz vs. Nayes, 17 La. Ann. 201. Levy vs. Schwartz, 34 La. Ann. 200. Police Jury vs. Johnson, 111 La. 278, 284, 35 South. 550. Where the court said: “We adhere to the decision cited by learned counsel (34 La. Ann. 214), in which it was held that a person who performs a contract unskillfully on the premises of a person who has contracted for a first-class outfit or a person who could not do otherwise than accept the situation, does not thereby waive damages.” Defendant cites in support of his position the case of Clark vs. Kempter, 3 Rob. 10. We do not think that case is authority for holding that the mere fact of moving into a building is such an acceptance of the work as to preclude the owner from claiming damages for defect in workmanship or material. [433] The facts in that case are quite different from those in this case. The other case, DeLambre vs. Williams, 36 La. Ann. 330, cited by counsel, is not in point, as in that case the owner had expressed satisfaction with the work and had paid for it. In the case at bar, plaintiff did not express satisfaction with the work. And it appears that he paid for the work, the full price, before the work was ever begun. He mortgaged his property and delivered the notes to the contractor when the contract was entered into. Not only was the house built on his lot, but he had paid the price, so that he was in a manner forced to accept the house, such as it was.