
    NO. 7852
    COURT OF APPEAL PARISH OF ORLEANS
    AUGUST. FRANK versus. WIDOW LEON SPARICIO.
    By Dinkelsplel; J/
   By Dlnkelspiel; J,

Plaintiff, a building oontraotor [brings this suit gainst defendant, on a building oontraot^whioh balloting oon-traot called for the reconstruction^ and finishing of a building owned by the defendant, acoording to plans,and specifications which are made part of said oontraot, the allegations of plaintiff's petition being to the effeot ,(that notwithstanding the work had been oarried out in accordance with said oon-traot that there remains a balanoe of Five Hundred ($500.00) Dollars, due him, whioh defendant refuses to pay.

Defendant, while admitting the oontraot sued on, denies liability for any unpaid balanoe,alleging that the work and material supplied by plaintiff,had not been in accordance with the oontraot, plans and specifications, but on the oontrary were manifestly Inferior thereto ^as set out by expert employed by her and therefore plaintiff,was not entitled to reoover for the balanoe not paid by her.

Defendant, further answering, claims to be entitled expert/ and to demurrage,/attorney's fees, under the terms of the oontraot, but has not offered any proof as to the amount of olaim, nor does she pray for anything but the dismissal of plaintiff's suit, and «amo was not taken into consideration by the Judge of the Loser Court ^in rendering his Judgment for plaintiff 1m the full amount olalmed by him^and iron whioh Judgment an appeal has been taken by the defendant, to this Court*

A careful examination of the record In this aaae^ and particularly the evidenoe of the experts appointed by the plaintiff^ and the defendant to examine ^and report upon the work and materials supplied by plaintiff on this' Job, shows same to be of a very oonfllotlng nature for erne on the one hand, Ur. Raymond, the arohlteot appointed by the defendant, sets out in a written report furnished by him to his prinolpal, a number of lnstanoes where In his opinion the work and material suppliedJhad been very muoh Inferior to that oalled for by the plans and specifications, while Ur. Hernandez, the expert appointed by the plaintiffs also in a written report rendered by him, olalms that In ' work and material the oontraot had not only bean oomglled with, exoept in a few minor lnstanoes, but In more than one oase better work and material had been supplied, for whioh no oharge had been made.

The plaintiff testified that he had rectified a number of so oalled defects as set out in the report of the defendant's arohlteot, notably amongst whioh being the rebuilding of the side piers, replacing of posts complained of, fixing of the front roof, capping the gams gas outlets, replacing of the electrical fixtures oomplalned of, by fittings of a better quality.

He also testified that some of the work whioh Mr* Raymond's report sets out had not been done by him, was not done because defendant herself had authorized changes to be. made, which necessitated that oertain ohanges be made In the plans and speolfications, suoh as the omission of a door between the first and seoond bed-rooms, whioh was done at the exprex with of the owner -^o that she Might he able to piaos her furniture to better advantage, and thle ohenge woe Made after the doore and franee hod been oonpleted by the builder in strlot aooordonoe with the plana and epaolflaatlone and neoeeeitated the building up of the planter, and papering of ■ame, all of whloh woe done without extra oharge to the defendant»

In eo far as the plastering le oonoerned, the testimony of the builder and of Ur. Hernandos, the arta arohlteot, are to the effeot that the plastering work whloh was oalled fpr by the speolfloatlons was what wae known as patoh work and for that olass of work it was done In a workmanship aan-ner^but being patoh work ysould not give the sane satisfaction as the new work.

There Is, It Is true a serious complaint of the painting whloh was done by plaintiff, and the evldenoe undoubtedly shows that some of the paint had peeled off at the time this suit was tried In the Court aquo^but as the reoord shows this complaint was made for the first1 time about two years after the job was oompleted, while the unoontradloted testimony of the builder and painter Is to the effeot that not only the but same was quality of point upg speoifledjrit&jused/aBDi applied In strlot aooordanae with the oontraot, therefore we are of opinion that proof is laoklng on the part of defendant to show that the peeling off of some of the paint was due to faulty material^ or workmanship of the plaintiff or of his painter.

We also hold that the elídenos does not show that the leaks oonplained of were due to any fault In oonstruotion are or workmanship of the building, norfa we of the opinion that they were really as bad In oharaoter as the pwitft ft sets out*

In regard to ohain wall, the ovidenoe oonvinoea ua that the same was oompleted in accordance with the speoifioa-tions and to have run same across the front as defendant oon-tends should have been done, would have been in violation of the XEiBsjas Rat-Proof Ordlnanoe of the City Counoilo

As a matter of faot a very careful consideration of all the evidence in this oase taken in connection with the contraot, plans and specifications, and the nature of the building which was the subjeot of the contract for repairs does not convince us that the plaintiff failed in any material way either in workmanship or material, to oarry out his contraot to the best of his ability and that the opinion of the Judge of the Distriot Court, who saw and heard the witnesses in this oase and who was in a better position than we are to oorreotly Judge of the creditability of the witnesses, and therefore we see no reason to disturb his judgment, whioh was in favor of plaintiff for the aasount olalmad»

For the reasons assigned it is therefore ordered, adjudged and deoreed that the judgment appealed from be affirmed, defendant and appellant to pay the oosts of both Courts*

Judgment affirmed»  