
    FRANK BRIGTSEN, INC. v. John SWEGEL.
    No. 4749.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 10, 1972.
    Rehearing Denied Feb. 23, 1972.
    Cronvich & Wambsgans, Richard M. Michalczyk, Metairie, for plaintiff-appellant.
    Melvin J. Duran, New Orleans, for defendant-appellee.
    Before LEMMON, GULOTTA, and BOUTALL, JJ.
   GULOTTA, Judge.

This is a suit on open account wherein plaintiff, Frank Brigtsen, Inc., claims $538.72 payment is due for approximately 6,500 bricks ordered by defendant, John Swegel, delivered to defendant’s home and used by him, and for drayage cost for removal of 13,500 remaining bricks which were unused. Defendant filed a reconven-tional demand seeking dismissal of plaintiff’s suit and in the alternative that if there be judgment in favor of plaintiff, then there be corresponding judgment for a like amount in favor of defendant based on redhibition.

The trial court dismissed plaintiff’s suit with costs assigning as reasons that though not defective structurally, the bricks were defective in their coating; therefore, defendant owed nothing to plaintiff.

The issue for our determination is simply whether the trial court’s finding was manifestly erroneous.

Approximately 20,000 bricks were originally delivered by plaintiff to defendant’s residence at 1421 Seminole Avenue, Metairie. Plaintiff had ordered the 20,000 bricks to be used in the construction of his house and garage. The brick was a special Spanish moss simulated old brick. The finish, if properly done, was baked into the brick at the kiln. Some of the bricks had a baked on white coating; others had gold, reddish or black coatings. The price was $61.00 per thousand plus tax and the total amount was $1,268.80 for the entire order.

Once the bricks were delivered, the Swegels hired a bricklayer to begin work on the garage. He began at the rear of the garage on Saturday May 7, 1969, and several thousand bricks were laid on a five-foot high wall of the garage that afternoon. Mrs. Swegel testified that it rained Saturday night and the following day she noticed the coating of color appeared to wash off of the bricks already installed on the garage leaving them faded and discolored. Mrs. Swegel called this to the attention of her husband who examined the bricks on Monday. The bricklayer had worked on Monday, but upon seeing the problem with the bricks that night, defendant stopped the work. Defendant testified that because of the unusual appearance of the washed off bricks, he felt he should stop the bricklaying since the bricks were not suited for the purpose of creating an old brick effect on the garage because they ruined the desired appearance.

Defendant notified plaintiff of the unusual discoloration of the bricks and requested that plaintiff come to his home to examine the bricks, which the plaintiff did along with a representative of the brick manufacturer. Defendant testified that the factory representative offered to have a white “slurry” or special coating painted on to the bricks which had faded from the water. However, defendant felt this painting might ruin the black mortar used in between the bricks already laid and thus refused. The parties could not agree on who should bear the cost of hauling away the remaining bricks which defendant rejected. Eventually, plaintiff hauled away the 13,500 unused bricks from defendant’s premises. Plaintiff then sued for reimbursement for the 6,500 bricks used and for drayage, i. e., the fee to haul away the 13,500 bricks.

We are convinced from the record that the complaint registered by the Swegels was a valid one. Both Mr. and Mrs. Swegel testified to the washing off of the coating that was to have been baked onto the bricks. The photographs which served as exhibits at the trial of this matter indicate that the designated five foot high area, where the defectively coated bricks had been laid on the garage, differed appreciably in appearance from the remainder of the garage which was subsequently installed and which had the desired effect. The patch of bricks complained of was distinctively faded.

Plaintiff’s contention that defendant’s failure to show a structural defect in the bricks prevented defendant from availing himself of the articles of the Civil Code on redhibitory defects is without merit.

It is our opinion that in his reconventional demand, defendant successfully carried the burden of proving by a preponderance of the evidence that the coating on the bricks was defective and washed away, thus the bricks were not suitable for the desired purpose.

L.C.C. art. 2520 reads:

“Redhibition is the avoidance of a sale on account of some vice or defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice.”

and L.C.C. art. 2546 states:

“In this case, the action for redhibition may be commenced at any time, provided a year has not elapsed since the discovery of the vice.”

Clearly, an old brick effect which was permanently baked into the brick was desired by defendant when he purchased the bricks. When the coating washed off and faded with the rain, the old brick effect was lost. Defendant, having chosen these particular Spanish moss bricks with the baked on coating for their special appearance, obviously would not have purchased them had he known the coating would fade so noticeably from mere rain water. Thus, a vice existed in the brick for which the defendant could avoid the sale under L.C.C. 2520.

In view of our determination that the coating on the bricks was defective, we are of the opinion that the trial judge was correct in not assessing drayage fees to defendant. Plaintiff had to remove the bricks at its own expense.

Accordingly, we find the trial judge’s conclusion that the bricks were defective in their coating was not manifestly erroneous, and the judgment dismissing plaintiff’s suit is affirmed with costs to be paid by plaintiff.

Affirmed.

ON APPLICATION FOR REHEARING

PER CURIAM.

This court has considered the argument that the defective bricks were used by defendant in the instant case and not tendered to plaintiff. However, we are mindful that defendant had expended a substantial sum (or approaching the same amount as that claimed by the plaintiff) on the installation of the bricks before the defect was discovered.

Furthermore, we note that when the controversy arose as to the defectiveness of the bricks, one of the alternatives that defendant offered to plaintiff was that plaintiff could remove the bricks from the garage itself and reimburse defendant for the money he spent for the bricklayer and mortar. Plaintiff obviously did not accept this alternative. A similar situation arose in the case of Zibilich v. Metry Upholstery, Inc., 148 So.2d 436, 438 (La.App. 4th Cir. 1963) involving defective draperies wherein the court considered defendant’s contention that plaintiff had failed to tender back the draperies to defendant in an action in redhi-bition. The court aptly stated therein:

“ * * * Defendant in support of this contention relies upon Article 2520 of our LSA-Civil Code, and maintains that, where there is a redhibitory vice in an article, the article must be tendered back before the return of the purchase price can be demanded. That, of course, is true whenever it is reasonably possible to physically tender the return of the defective article, but it has no application in a case of this kind where it is shown, as this record abundantly demonstrates, that when the defects were discovered and the return of the purchase price was demanded, the plaintiff, on several occasions, called on defendant to remove the draperies and defendant refused to do so. Plaintiff said that from time to time he called on defendant to remove the draperies but this offer ‘was finally rejected.’ ” (Emphasis ours.)

To require the defendant to incur the additional cost of removing the installed bricks from the garage in addition to dray-age costs, in order to tender them to plaintiff, would, in our opinion, be an exercise in futility and onerous, therefore, unreasonable in these circumstances.

The law does not require one to do a vain and useless thing. Perkins v. Chatry, 58 So.2d 349, 352 (Orl., La.App.1952) writ denied; Harkness v. Leggett, 171 La. 405, 131 So. 190 (1930). Therein lies the basis for our determination that plaintiff be deprived of the price of the bricks used by the defendant.

Accordingly, the Application for Rehearing herein is denied.  