#### KINGS TRUCK & BODY WORKS v. BARRETT.

No. 7252.

Court of Appeal of Louisiana. Second Circuit.

Oct. 27, 1948.

Rehearing Granted Jan. 6, 1949.

On Rehearing March 30, 1949.

Morgan, Baker & Skeels, of Shreveport, for appellant.

Love & Bailey, of' Shreveport, for ap-pellee.

HARDY, Judge.

Plaintiff sues to recover the sum of $525.00 for work performed in installing a •refrigerator body on a Jeep automobile truck owned by defendant. Defendant admitted the agreement for the performance of the work by plaintiff, but strenuously opposed the action for recovery of the value thereof on the ground that plaintiff’s work was thoroughly and completely unsatisfactory and that the body as constructed by plaintiff was useless for the •purpose for which it was designed, namely, as a container for ice cream to be sold by defendant in retail trade. Defendant reconvened for damages consisting of loss of earnings, expenditures on the body designed to make the same fit for use, and attorney’s fees, in the total sum of $1,-184.09.

After trial there was judgment rejecting both the demands of plaintiff and the reconventional demand of defendant, from which judgment plaintiff has appealed and defendant has answered the appeal, re-urging his reconventional demands.

The following facts were conclusively established on trial: that defendant purchased a Jeep truck in 'the early part of July, 1947, and at or about the same date entered into an agreement with plaintiff for the building of an insulated refrigerator body at a fixed cost of $500.00; *602that the truck was delivered to plaintiff on or about July 29th, for the purpose of beginning the work; that between the dates of July 29th and September 11th, 1947, plaintiff had possession of the truck with the exception of two days during the latter part of August; that on September IS, 1947, the defendant took possession of the truck and body, delivered the same to a garage for work in lining the refrigerator; that the truck was again returned to plaintiff on September 19th, and finally was taken possession of by defendant on September 22nd.

One of the disputed facts in connection with this matter is with respect 'to the agreement as to the time for the performance of the work. ' Defendant contends that plaintiff agreed to complete the work within a period of two weeks after the truck was first delivered to him on July 29th. While this is stoutly denied by plaintiff, we are constrained to conclude that there was some su'ch understanding. Defendant, a returned war veteran, was anxious to begin work in some gainful employment and the business he selected, namely, that of retailing ice cream products, is definitely a seasonable venture. There can be no question as to defendant’s desire to have the work performed with the least possible delay, and certainly time was of the essence of the agreement. The evidence on this point appears to us to preponderate in favor of defendant.

Certainly, there is no question as to the correctness of a finding to the effect that plaintiff consumed an undue amount of time in its work on the refrigerator body, and, further, that the job was completely unsatisfactory, and, to a large degree, unserviceable for the purpose for which intended. To our minds these facts are conclusively established by the record, and it follows that plaintiff is not entitled to recover by reason of the fact that he sues on the basis of work performed under an agreement and he has failed to establish compliance with the terms thereof.

It is argu'ed on the part of plaintiff that its work was “substantially” completed on August 29th, when the vehicle was first taken out of its possession for a brief period 'of time by the defendant, and that only minor details in connection with the construction remained to be done. This argument is refuted by the fact that after August 30th the vehicle was returned to plaintiff, who retained possession of it for a period of some three weeks more or less. And it must be borne in mind that plaintiff never did satisfactorily remedy the existing defects and, after thorough study of the evidence, we have reached the conclusion that this failure was due to plaintiff’s lack of ability to satisfactorily perform his agreement and not to any lack of time within which to perform. It was shown that plaintiff had never performed any work of this nature or kind, and, in fact, it appears that the venture on his part was in the nature of an experiment and, unques.-tionably, his efforts were unsuccessful.

It is further urged on behalf of plaintiff ■that if the Court should hold he has failed to perform his obligations by reason of the incomplete or defective work, that he is. nonetheless entitled to recover the contract price, leaving defendant a remedy in the-nature of a reduction to the extent neces.-sary to perfect or complete the work. There might be some merit in this contention were it not for the fact that defendant has successfully established the fact,, through the overwhelming testimony of himself and his witnesses -that the job as performed by plaintiff is useless for the intended purpose. Defendant received little,, if any, benefit as the result of plaintiff’s, work. He was deprived of any use of the truck during the period which embraced the height of the season for the sale of his produce; he was put to some substantial expense in the attempt to procure elsewhere a remedy of the defects, and, despite everything that was done, the work remained thoroughly unsatisfactory.

Under this conception of the established facts, we are firm in the belief that plaintiff has failed to make out a case for recovery on any ground whatever and the citations of authority as to the right to an increase over the contract price, the determination of “reasonable time”, the alleged prevention of performance by defendant, and the correction of defects, are alike inapplicable.

*603The nature of this action and the facts •involved are strikingly similar to the case of Standard Plumbing, Pleating & Supply Co., Inc., v. Goudchaux’, et al., La.App., 11 So.2d 96, which was an action for the ■recovery of the contract price for the installation of a cooling system. Our brethren of the First Circuit compared the action to that of the voidance of a sale by a buyer for defects rendering it unfit for the purpose of and use for which it was intended. On this ground recovery for a cooling system, which was unsatisfactory, was denied. We think the same principle is properly invoked in the case before us.

We find no merit in the claims advanced by defendant in the nature of a reconventional demand. With the exception of one or two items, defendant failed to properly establish any damage. But, primarily, the reconventional demand may not be properly considered by reason of the fact that defendant has failed to put plaintiff in default as expressly required by the ■provisions of Article 1912 of the Civil Code.

For the reasons assigned, the judgment ■appealed from is affirmed at appellant’s ■cost.

On Rehearing.

KENNON, Judge.

Our original decree affirmed the judgment of the District Court, which rejected plaintiff’s demand against defendant for $525.00 for work performed in installing .a refrigerator body on the Jeep automobile •.truck owned by defendant and also rejected ■defendant’s reconventional demands for damages, loss of earnings and expenditures on the refrigerator body designed to make .same fit for use.

The District Court judgment was silent ■as to the disposition of the truck body, and no mention was made of this point by counsel for plaintiff or defendant in arguing the case on appeal.

In an application for rehearing, the plain•tiff concedes the correctness of the District Court judgment (affirmed by this Court) rejecting the demands of the plaintiff and rejecting the demands of the defendant in reconvention, but prays that the judgment appealed from be amended by ordering that the refrigerator body be held 'subject ¡to the order and disposition of plaintiff.

The defendant, in his brief opposing the application for rehearing, contends that the relief asked by plaintiff is beyond the scope of its pleadings and not properly before us on appeal.

Plaintiff in its original petition, after setting forth its contract with defendant and the completion of its work and delivery of the refrigerator body, prayed for a money judgment for the price allegedly agreed upon; for the issuance and maintenance of a writ of provisional seizure, etc'.,' and concluded the prayer of the petition with the following paragraph:

> “V. For all such additional relief as law, ■equity and the nature of the case may permit.”

Defendant, in paragraph ten of his answer, set forth that the “alleged work or sale of refrigerator in question should be rescinded, set aside and annulled and that plaintiff in reconvention be entitled to recover the amount sued for herein in recon-vention.”

The plaintiff appealed from a judgment of the District Court rejecting its demands and also rejecting “the demands of plaintiff in reconvention.” Defendant answered the appeal requesting that the judgment of the lower Court be reversed insofar as it rejected his reconventional,demand.

The record shows that the plaintiff took both a suspensive and devolutive appeal from the judgment as rendered by the District Court. The defendant in his answer to the appeal prayed for a reversal of the only portion of the judgment adverse to defendant — the portion rejecting his recon-ventional demand.

The above quoted paragraph V. of plaintiff’s, petition asked for all the relief that law, equity and the nature of the case permits. The Courts of Louisiana have often held that in the case of the rescission of a sale for defects in the article sold, equity and justice require that the parties be placed in the same position they were in before the sale as nearly as is possible under the circumstances. We have *604concluded that this can best be accomplished by rendering judgment as follows.

Our original judgment herein is amended by ordering that the refrigerator body be held subject to the order and disposition of the plaintiff.

It is further ordered that the defendant (or sheriff if same be in his possession under Court order), deliver the refrigerator body to the plaintiff within fifteen days from the date this judgment shall become final and if, due to any action of defendant past or future, the refrigerator body is not delivered to plaintiff, the plaintiff do have and recover judgment aga-inst the defendant in the sum of $388.41 ($525.00 contract price less $136.59 expended by defendant to make body usable), with 5% per annum interest from date of filing of the suit in the District Court.

As amended, our original judgment is reinstated. Costs of District Court to be paid 'by plaintiff; costs of .appeal to be borne by defendant.