
    NO. 8285
    COURT OF APPEAL PARISH OF ORLEANS
    CHARLES F. PETERSON versus FRANK P. BARRY
    
      
    
   Dinkelspiel; J,

Plaintiff institutes this suit claiming the sum of Hundred and Twenty Four and 44/100 Dollars, for this vrits

That on September 18th, 1918, plaintiff entered into a written oontraot with defendant for oertain renovations and oonstruotion work on the premises Ho. 3036 St. Charles Avenue; a oopy of said oontraot is annexed to the petition, marked Exhibit "A".

That under said oontraot plaintiff was to receive for said work, the sum of Twenty Two Hundred and Fifty Dollars, payable as therein set forth. Avers further that on October 16th, 1918, he entered into a supplemental oontraot for additional work on the same premises and was to be paid the sum of One Hundred and Forty Seven Dollars under that oontraot. And further alleged that on Hovember 39th of the same year, he entered into a seoond supplemental oon-traot for additional work to be done on the same premises for whioh he was to receive the sum of Forty Eight Dollars. All the foregoing oontraots were in writing and also made part of the plaintiff's petition.

Alleged further thot under instructions of the defendant, other extra work was to have been furnished and he annexes a detailed statement, claiming the sum of Two Hundred and Seventy Six and 30/100 Dollars,

Finally plaintiff alleges that he has performed all the work required of him under the said oontraots, in aoooraanoe with the terms of same, but defendant has failed and refused to pay him the amount due; has refused to accept the work, although completed under his oontraot. Avers amicable demand and prays for judgment.

Defendant admits the various oontraots sued upon, but denies that said oontraots were carried out in aooordanoe with speoific&tions, and therefore, refused to pay the full amount due defendant, denying that he owes anything, and rejtying on the olause;

"Should the contractor for any reason fail or negleot to perform the work contemplated in this agreement, the owner shall he at liberty to he,ve the work completed at the oost and expense of said contractor."

He further avers that the oontraot-. provided same that plaintiff should have oompleted. /fckaxraxi within fifty days from its date, olaiming that not having' done so, he was entitled to get modifications of the agreement and damages for demurrage» Alleges further that plaintiff having failed to prosecute the work as agreed upon, he notified him'' in writing on the 17th of Deoember,- 1918, that the oontraot had been, withdrawn and that he, plaintiff, was in default,, and therefore gave notioe in aocordanoe with his oontraot. That de-bids fendant was compelled to solioit «¡¿oteieeac to oomplete said work, whioh he did, itemizing the sums expended in statement annexed to his answer', and finally prays plaintiff s that/derftatacfcJcx olalm bnxx be rejected and that- in re-, convention, defendant recover, of plaintiff, the sum of Six Hundred Seventy Seven and Seventy Five One Hundredths Dollars, rejecting plaintiff's demand at his oost.

Specifications and plans are annexed to the contracts end are me-de part of this reoord, together with .correspondence between plaintiff and defendant.

Plaintiff,-• as a witness in his own benalf testifies substantially to performance of his contracts with defendant in so far as it was possible for him to do so, certain exceptions vo the entire completion of the oontraots in question were aaJcfctsd admitted, but ola-lmed to be caused by the acts of the defendant, in constantly interfering with the workmen sent to his residence in order to oarry out the contracts in question.. This faot was proven, by many of the worksn, most of them swearing that defendant'constantly oureed and abused them, going so far as threatening to kill one or more of them, . I.t has been also established by the testimony of Jones, Martinez, Coheii and Millón, all of them either supplying materials to plaintiff as oontraotor on these premises, or workmen, that, the work was substantially completed with the exceptions heretofore detailed and all of them in their- respective lines of business, who had supplied-lumber, paints-and other artioles, testified to the .faot that in so far as it was possible; they had done the’work entirely up tp and aooording to the oontraot.

The defendant in his own behalf, in lengthy general statements, denied emphatically that he ever interfered with any of the workmen or with the plaintiff 'himself, and .further testified-that the work, save and except pertain parts of it, had been executed in accordance with the oontraots; that the v/orkmen were not annoyed but that he never interfered With them and did everything he could- to aid and ’assist plaintiff in executing his oontraot, and when plaintiff failed in doing this he was compelled to take and employ other people and furnish other materials in order to finish the building in question,- and do work that should have been done by plaintiff which was not done by him, and he was put to great inoonvenienoes, loss of time and compelled to pay the- large amounts of money, for whioh he claimed .in reconvention, judgment against plaintiff.

But on the trial of this oase, before this Court, the-reoonventional demand was abandoned in open Court by counsel and simply prayed that under a judgment, plaintiff's suit be dismissed at his oost.

He has endeavored by the -evidenoe of L’ockhart, Larsen, Bab3t and his own evidenoe -together with his wife-'s, to establish these facts.

A oareful Investigation of this record satisfies us that defendant has failed to establish, to our satis-■faotlon, his claims for improper work done under the various contracts, but on the contrary, we ere ooiivinoed that plaintiff has substantially carried out his contract' as'far as it lie in his power, and was stopped by the defendant in the execration of his work, until finally after almost completing the entire job, and delivery of oertain wall paper and other materials whioh the testimony disoloses he oould not fulfill through the aots of the defendant.

To go through and itemize the defendant's statements, and all the testimony of the many witnesses contradiotory, would accomplish no useful purpose, and would not serve the interest of justice. We take the reoord as we find it, and from its examination we are oonvinoed thst the Judge of the Court aquo who heard all the testimony in this case, and having tascrixail seen the witnesses and noted the manner in whioh they testified, was in a better position to judge than we'are, and he oame to the conclusion that plaintiff was entitled to a judgment Tot the sum of Six Hundred and Eleven and Forty Four One Hundredths Dollars, with legal interest from judicial demand until paid, and all oosts -of this suit.

We find in the oase ofDugue,vs. Levy, 114 La. at p. S3, the following exoerpt, whioh we quote:

"A substantial performance of the oontraot is all that the law requires, end the employer will not be permitted to avoid payment beoause the strtot letter of the agreement had not been oarried out. Slight deviations, therefore, or technical, unimportant, or inadvertent omissions or defects will not bar- recovery.

For the reasons assigned, it is ordered, adjudged and decreed, that the judgment of the Oourt aquo he and the same is hereby affirmed, with costs of both Courts to be paid by the defendant.

-Judgment affirmed».  