
    Wm.H.Byers and Al. vs Mr and Mrs Cliff B.Farish,Appellants
    No. 8605
    January 2nd 1922
    Charles F.Claiborne,Judge.
   Charles F.Claiborne,Judge.

Shis is a shit for a balanoe due on afe building contract.

The plaintiffs wrote to the defendants the following letters

New Orleans,La.11-10-21
Mrs Farish
2323 Magazine Street,City
Dear Madam,
We hereby agree to furnish all the labor and material necessary to make the repairs in your residence for the sum of Five Hundred and Fourteen dollars f514.00 as follows ;
1st. Remove the present floor on front gallery,replacing same With a concrete floor,three inches of concrete and one inch cement topping with heavy wire in between conorete for reinforcing.
2nd. Build four 16 inch oolumns of pressed briok about three feet high cutting off present oolumns so same will rest on briok columns with base and mouldings.Present buttress to be rebuilt so same will show 12 inohes at base and cap 14 inohesf 3rd. Pront steps to be replaced with conoerete and cement topping,also two steel rods to each step for reinforoing;
4th Where wood work for old screens on cornice same to be removed and put in good condition;
5th On side pórch and rear kitchen new steps to be made.
0th Tear down old stairs in rear and build new flight as designated.
7th. Remove the present floor on upper rear gallery replacing same with 1 1/8 X 3 1/4 B.grade flooririg,all pieces to be one length and grooves well painted with white lead, and oil.same to be drove up tight,
8th Remove present two windpwa in dining room replacing same to place as designated.
Any minor details suoh as renailing weather boarding eto we will also do.
Renew the entire house with new gutters No.26 iron. O.G.gutters where shown and round gutters the same.We find two 3 inoh down spouts that will also be made new. The railing on upper rear gallery to be made substantial.
The ohain wall under front gallery to be recemented.
Signed: W.H. and H.S.Byers.
By. W.H.Byers.
Where windows are removed in B.Room same to be closed up.
W.H. and H.S.Byers By. W.H.Byers.
To this letter the defendants answered :
Hew Orleans,La.10-10-21
W.H. and H.S.Byers,City
Gentlemen,
Your proposal of even date to furnish all material and labor according to specifications,to make the necessary-repairs on residence 1323 Magazine Street for the sum of Five Hundred and Fourteen Dollars $514.00 has been accepted.
Accepted.
Signed Mrs O.B.Parish C.B.FariBh.

The plaintiff executed his oontract,and also alleged chat he made extras to the amount of $164.15 .On December 3rd 1921 the defendant paid him on acoount $500 .She failed to pay any more,and plaintiff filed suit on January 5th 1982,claiming a balanoe of $14 on the contract and $164.15 for extras .

The extras claimed by plaintiff consisted of i 1st. Putting on shed roof over kitchen and

weather boarding and ceiling inner walls about three feet hlgn and stripped ready for soreen wire. $140.00

Repairing old roof. 24.15

$164.15

There was judgment against Mrs Baris*. and she has appealed.

Defendant filed a general denial,and further answering averred :" Defendant furJhhBr adages that after the payment of the $500.00 above set forth,she discovered for the first time that the work was improp«rly <3-ne;whereupon she called upon plaintiffs t..id entered 1.8r complaint and protest therefor, and that plaintiffs agreed to correct and rectify any work improperly done,which they attempted to do and are now seeking to charge defendant the sum of $164.15. therefor,that defendant is now compelled to pay the sum of $165.00 to have same corrected and done properly,which defendant is now entitled to recover from plaintiffs ."

It is evident that those allegations were not facts but matters of opinion which did not inform the plaintiff of the particular defects and imperfections of which the defendants complained and which the plaintiffs had a right to know in order to refute them.As allegations in a petition they would neve been vague and indefinite,and would have justified an exception of no cause of action or af vagueness. 124 La 865 133 La 137-145 La 349- As an answe*,plaintiffs would have had a right to call on defendants to specify in what particulars the contract had been badly executed 139 La 18.But plaintiffb did not do so.

Defendants have expati. ted upon their defense by their in testimony.In as.much as it has not influenced our judgmentAtheir wifcfei» favor,we prefer to consider the several objections raised by them in their order .We shall first treat of their work covered by their original hid:

1st The first objection is that the wooden or .. no on tint front porch are out of plumb visible to the nato. jye.inore ie no charge that the columns i.re in that oonuj ti. r ty reason of any action of the plaintiff.They were .o prior to IV contract. It seeme that inside of the woo'den columns the- 3 were iron columns invisible to the eye,about which thj : Iv. intiff knew nothing and of which they had not been informes-Thes'e columns had settled slightly with time.They were imbedded in the chain wall of the gallery and could not have been straightened without breaking up the chair, wall,taking them out and resetting them.The contract did not contemplate that plaintiffs should do this work which would have entailed an expense not anticipated.The defendants,husband and wife lived upoh the place and no doubt saw the work as it progressed.They found no ' vjt with it until after this suit was filed.

2nd 'me windows which served as doors between the bed room and the dining room were removed to the side wall so as 1 o serve as windows there and not as doors.They were slip head windows,ascending in a pocket over the window,if pcrV-n, the”e was.To liave made them ascend in that manner it would have heor necessary to tear out and rebuild the wall from the top of the wa»4 window to the ceiling,the more ao as the original wall was thinner then the Jams of the windows.If the lower sash cannot go higher ther. tliree feet the upper 6ash can come down and thus surve the purposee of light and vertiietior both for which alone tVse windows were.

3rd Thu "floo; "existing at. the tin.c of oh» cont .-a et m three,:- gallery was removed according to c. itiao* .It seeris the . under that floor,there was another fleer,aid a tin co'e.’ii-g 'not known 10 tne plaintiffs.Plai, tif.'s cunt-aer m c ... ~e the "floor* .'li.e floor is that pa-t o: a. e,nur*ir.en* - '.'"tul one walks,and. not a double fio >h or rniouit orb trru.. cc > . that may be found upon the floo: prop jr.hu t: .e-e- i - u c _ -( i-k to show that the existence of the second floor and of the tin aw-roof to harmful.

January 2nd 1923.

We therefore see no defense to the claim for work done under the contraer.

Seoend, Coming to the demand for extra work,we fail to perceive that any part of that work was included in the original contaspe^ on ract.The extra work is for puttingAa new roof over kitchen and for weather boarding and ceiling inner WallB §140 so as to make a sleeping porch,s.nd for repairing old roof §24.15 .None of that work was included ih the plaintiff’s bid notwithstanding the defendant testifies that it was.It is admitted that the work was done,but it is alleged that it was badly done and that the new roof leaks for want of pitch and that the old roof leaks.The new roof Vías of tar paper.

There is no satisfactory evidence that it leaked or that the leak could not llave been stopped.The same may be said of the leaks over the old kitchen roof.When the plaintiffs,accompanied by an expert,sought Admission into the defendants' house to examine the complaints about the work,they were denied permission.Work was begun in October 1921 and this case was tried in February 1922.Up to that time defendants had not made any changes to any of the work claimed by plaintiffs.

The trial judge heard and saw the witnesses and rendered judgment in favor of plaintiffs.We cannot say he erred.

Judgment Affirmed.  