
    HOB’S REFRIGERATION AND AIR CONDITIONING, INC. v. Emile POCHE.
    No. 5687.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 9, 1974.
    Rehearing Denied May 10, 1974.
    Writ Granted June 21, 1974.
    Ronald J. Landry, Gramercy, for defendant-appellee.
    Before STOULIG, J., and MARINO and MALIK, JJ. Pro Tem.
   RUCHE J. MARINO, Judge Pro Tem.

Action by suit on an open account allegedly due appellants Hob’s Refrigeration and Air Conditioning, Inc. (hereinafter called Hob’s) against appellee, debtor, Emile Poche, (hereinafter called Poche) met with special defenses.

From an adverse judgment rejecting Hob’s demands the latter prosecutes this appeal.

The facts, while apparently confused, are relatively simple.

During the year ’67 Hob’s installed an air conditioning unit in Poche’s residence. The ’67 unit” was operational until May of ’69 when it was apparent to Poche that he required something to cool his house. However, before that something was put in Hob’s required that he pay the balance of his ’67 account which of course was subsequently paid. At any rate Poche decided that what he needed was one rebuilt compressor. Hob’s purchased the rebuilt compressor from Hob’s wholesaler, who expressly sold the rebuilt compressor to Hob’s expressly warranted the unit to Hob’s for 60 days. (Transcript p-8) The foregoing 60 day warranty (P-1) from the wholesaler to retailer did not appear on the Hob’s invoice to Poche as an express warranty as such to Poche. What does appear in the record is the testimony of Mr. Simon (transcript p-10) relating the warranty. On or about May 13, 1969 or May 15, 1969 the ’67 unit was replaced with the rebuilt unit and the full purchase price of $450 was paid by Poche to Hob’s.

Then the trouble started which is the crux of this suit. On or about August 8, 1969 Simon got a call from Poche relating that the unit was out. An employee of Hob’s, Templet, allegedly made the service call and was told about the malfunction previously, but due to his death his testimony was unavailable and we’ll never know what happened as far as his part was in his service function. Hob’s received a call on the 20th and on the 29th the compressor was replaced and unit fixed. On or about September 30, 1969 Poche got a bill which Poche refused to pay. The action at bar is to collect that amount.

First, the parties agree that the August 29, 1969 replacement unit for -which Hob’s billed Poche for was never paid.

Also, the record is clear that the August 29, 1969 unit was put in. Poche offered no proof to rebut the fact that it was installed.

Poche contends that the unit, if put in, was defective, and should have been replaced since the rebuilt compressor carried a 1 year warranty. The record discloses no facts to prove a 1 year express warranty. At most the record discloses a 60 day express warranty but this warranty was between the wholesaler (Hermetic) and the retailer Hob’s. There was no express warranty of 60 days between Hob’s and Poche. The facts just do not bear out any proof of an expressed warranty.

The defense of redhibition or a reduction in the purchase price was not raised by Poche or.his counsel. It would appear that if Poche’s unit did not function properly, then Poche had the right, if he so chose, to file a redhibitory action for defective machinery or file for a reduction of the price. This was not done.

The only question remaining is whether or not Hob’s proved his debt under what is legally required to prove a debt on an open account subject to the interposition of any legal defenses.

As indicated earlier the evidence proves that the last replacement unit (P-3) namely one carrier 6044, 220 volt, 3 phase rebuilt compressor was installed by its servicemen on August 29, 1969. (This is the unit that replaced the $450 unit installed on or about May 1969.) Furthermore, that on or about September 30, 1969 a bill was forwarded to Poche in the amount of $427.64 of which is unpaid. The installation was proved by a preponderance of the evidence and the amount remained unpaid.

Are there any legal defenses which could defeat the payment of this open account due?

The trial court found an implied warranty. In effect it was held that the replacement and repairs were the responsibility of Hob’s. The record discloses that no evidence was adduced to indicate that Poche had trouble during June and July of ’69 On August 8, 1969 was the next service date proved. It is beyond belief to find that Poche let two of the hottest months pass without making numerous calls to his air conditioner serviceman in order to have the problem corrected. Having factually moved down to the installation of a rebuilt compressor in May which breaks down in August where does the replacement and repair responsibility fall—which is and has been the issue of this case ?

The cases cited by the trial judge below are not apropros. A buyer cannot defeat the payment of that which is due on open account by “shotgunning” defenses as was done in the case at bar. The court raised the defense of redhibition, with the implied warranty theory. To sustain a defense of redhibition, or in the alternative, reduction of price for vices warranting redhibition is apparent within 3 days following sales, it is incumbent upon defendant to establish the existence of the defects of which they complained but also the amount of reduction to which they are entitled.

Johnson v. H. W. Parson Motors, Inc., La.App., 231 So.2d 73. Clearly the burden of proof is on the buyer not the seller. A defendant may not simply defeat the request of the purchaser for the money due him on an open account. Thompson v. W. C. Warmack et al., La.App., 231 So.2d 636. Implied warranty cannot be used as an absolute defense as was done herein.

While it may not be a good business practice for Hob’s to conduct their business in such a fashion the responsibility of fixing the rebuilt compressor which malfunctioned in August is to be borne by Poche. Poche knew or should have known what he was getting when Hob’s installed the rebuilt compressor at Poche’s request and decision to put in a rebuilt compressor rather than a new compressor properly warranted. To install a rebuilt compressor in May, which subsequently goes out in the latter part of August, (all of which Poche had use of during the hottest months of the year with no proved complaints in the interim to Hobs,) and require that Hob’s bear the cost of fixing same in August is not a proper allocation of implied warranty-

This court is constrained to reverse the ruling of our trial brother below and enter judgment in favor of Hob’s requiring that: It is ordered, adjudged and decreed that there be judgment in favor of plaintiff-appellant Hob’s Refrigeration and Air Conditioning Inc., and against Emile Poche defendant-appellee in the full and true sum of four hundred twenty-seven & °%oo dollars ($427.64) together with legal interest from date of judicial demand. All cost of court to be borne by defendant-appellee Poche.

Reversed.

STOULIG, J., dissents with written reasons.

STOULIG, Judge

(dissenting).

I respectfully dissent.

Plaintiff, Hob’s Refrigeration & Air Conditioning, Inc., filed suit to recover $427.64 allegedly due for the installation of a rebuilt compressor in a central air-conditioning system in the home of defendant, Emile Poche. Defendant answered denying liability on the theory the services performed were remedial work on a defective unit previously installed by plaintiff. Further, he averred the original installation was warranted for one year, thus the expenses incurred in either replacing or repairing the rebuilt compressor must be borne by plaintiff. From a judgment dismissing its suit, plaintiff has appealed.

On May IS, 1969, plaintiff’s representative Mr. Templet — deceased at the time of the trial — installed a rebuilt compressor to replace another rebuilt compressor which was placed in the system in April 1967 and had burned out. Before undertaking this installation, plaintiff required Poche to pay the $200 unpaid balance on the 1967 job and the full price of $450 in advance for parts and service on this job. Shortly after its installation, this compressor also burned out.

According to Poche, the unit lasted one month; according to plaintiff’s records, more than three months. The defendant testified he advised Mr. Templet as early as May 26, 1969 at a chance meeting at the school board office that the unit never functioned properly, but nothing was done by plaintiff. In mid-June upon being notified by Poche that the compressor “was out,” plaintiff removed the unit and returned 12 days later at which time it either reinstalled the repaired unit or replaced it with yet another rebuilt compressor.

Because of Mr. Templet’s death, plaintiff relied on its records of service calls (1) to establish no complaints were made by Poche after the May installation until August 8, 1969, and (2) to prove another rebuilt compressor and incidental parts were placed in defendant’s system. Although Poche was considered a bad credit risk- — and reasonably so — it was not explained why plaintiff abandoned its cash-in-advance policy on the August installation by mailing on October 1 a statement for the service previously rendered on August 29, 1969.

In addition to the duration of the operating time of the unit installed May 15, the litigants dispute the extent of the warranty. According to Poche, plaintiff’s representative verbally warranted the compressor for one year. This is denied by Byron Melancon, one of Hob’s owners who explained plaintiff was given a 60-day warranty on the rebuilt unit by its supplier and that it was plaintiff’s policy to extend the same warranty to its customer. But the record is devoid of evidence to establish defendant was advised of the 60-day warranty.

The trial court found it unnecessary to make factual findings because even if plaintiff’s evidence is accepted in its entirety, it must still bear the cost of the remedial work. In written reasons, the trial judge ruled the seller impliedly warranted the compressor would serve the purpose for which it was purchased and since plaintiff failed to prove this implied warranty was expressly limited by the parties, it must absorb the expense of either repairing or replacing the defective unit.

Plaintiff argues the law of implied warranty cannot defeat a suit on an open account unless defendant pleads redhibition. Since an action in redhibition has for its object the avoidance of a sale based on a serious defect, we fail to see why Poche, who is not trying to return the compressor, was obligated to raise redhibition. Defendant’s answer is appropriate in that it denies liability because plaintiff’s services were rendered under its warranty agreement and were improperly charged against defendant. Further, when the defendant pleaded the rebuilt unit was expressly warranted for one year, plaintiff was fully apprised of the ground on which the suit would be defended. Even though the trial judge did not indicate whether Poche’s testimony on the one-year warranty was accepted, the plaintiff cannot complain because the decision was based on the law of implied warranty. It was not the buyer’s duty to prove an implied warranty was extended with the sale of the rebuilt compressor, but rather the seller’s burden to establish that the warranty implicit in every sale was expressly limited by the seller. Civil Code Article 2475 imposes on the seller the obligation to warrant the fitness of the thing sold. In addition, Civil Code Articles 2474 and 2503 require the seller to clearly express an intent to restrict or waive the warranty implied by law. See Donachricha v. D’Antoni, 270 So.2d 149 (La.App. 1st Cir. 1972), and cases cited therein.

In this case we are considering the sale of a rebuilt compressor. Obviously the warranty implied by law should not be for the same duration as that we would accord to a new compressor. See Richardson v. French, 253 So.2d 602 (La.App. 2d Cir. 1971). Thus we must consider for what period of time should Poche have reasonably expected the compressor to function properly. When he made this purchase it was his experience that a rebuilt compressor had functioned for 25 months. Even if we accept plaintiff’s statement the unit installed in May operated more than 90 days, we do not suppose Poche would have paid $450 for a compressor to function only three months. We agree that absent an express limitation of warranty to the contrary — and there is none proved — plaintiff impliedly warranted this unit would run for more than 90 days. Thus the defense that the work undertaken by plaintiff to remedy the defective May 15 installation should be at plaintiff’s expense has merit.  