Opinion
No. 10552.
February 7, 1980.
APPEAL FROM TWENTY-FIFTH JUDICIAL DISTRICT COURT, PARISH OF PLAQUEMINES, DIV. "B", STATE OF LOUISIANA, HONORABLE EUGENE E. LEON, JR., J.
Wayne C. Giordano, Belle Chasse, for plaintiff-appellee.
Tucker Schonekas, Russell J. Schonekas, New Orleans by Provino C. Mosca, New Orleans, for defendant-appellant.
Before REDMANN, LEMMON and BOUTALL, JJ.
The furnisher of cabinets sued the owner-builder of a new house for the price of the cabinets. From a judgment in plaintiff's favor, the owner appeals.
Belle Chasse Cabinet Works, Inc. entered into a contract with Edward Jenkins to furnish (without installation) a number of cabinets for a new house that he was building, with himself acting as general contractor. The cabinets were installed by another subcontractor of Jenkins' choice. After installation, the owner decided that the cabinets were defective and did not meet the specifications he required. Accordingly, they were removed from the premises and stored elsewhere. This suit to recover the price followed.
The owner refused payment contending that the corners of some cabinet doors were warped and the hinges were not set squarely or evenly. The plastic laminate was improperly finished and the lapjoint was reversed in some instances causing an uneven appearance of edges. The cabinets did not fit properly into the assigned spaces and the utility room base cabinets were the wrong length. In support of his contentions, the defendant offered three expert witnesses to prove the poor workmanship and appearance of the cabinets. The trial court in his reasons for judgment, did not assign as much evidentiary value to the testimony of these witnesses as he did to plaintiff's expert, the latter being the only individual who had a long history of both the manufacture and installation of cabinets personally. Additionally, the record indicates that a considerable portion of the defendant's witnesses' testimony does indeed support the position of plaintiff rather than defendant.
It is apparent that there were some defects in the cabinets when they were furnished, however it is equally apparent that these defects were of a minor nature and could be easily corrected. In fact the parties stipulated that "it is physically possible to remedy all alleged defects . . ., either on the job site or at plaintiff's facilities." The evidence in general establishes the fact that the cabinets were improperly installed by the owner's other subcontractor who used screw nails to nail them into the places assigned, rather than screwing them in so that adjustment could be made for proper fit and squaring of the cabinets. Some of the assigned spaces were not themselves square, and the installer had some problems in making a proper fit. As a result of this, some of the uneven edges complained of were created by saw marks made by the installer. The unevenness of the hinges and similar items are all subject to correction at the time of installation. The improper hole for the utility bowl could easily be corrected. The defendant's action in having the cabinets removed without giving plaintiff a chance to correct these minor items cannot cause the defeat of plaintiff's claim for payment. Insofar as the improper length of the two utility room base cabinets, the evidence demonstrates that one was longer than the other in order to properly fit the assigned spaces, and that the installer cut off some of the longer cabinet to make it fit the shorter space, and thus the shorter cabinet was too short to fill the longer space.
We conclude that the evidence fairly substantiates the findings of the trial judge.
Appellant contends that the trial court erred in assessing him with the price of some cabinets that were never furnished. The evidence shows however that plaintiff was in the process of constructing some additional cabinets in its plant, and that its charges for those items only encompassed the work and materials up to the unfinished status at the time when appellant informed plaintiff that the other cabinets were unsatisfactory and that all cabinets should be removed and taken back.
The last error complained of is the assessment of expert fees. The trial court adjudicated that the expert fees of plaintiff be assessed at $375.00 and appellant contends this is erroneous since the only expert furnished by plaintiff was its stockholder and operator Aubrey Adams, Sr. We do not hesitate to affirm this portion of the judgment because the parties stipulated as to the amount of expert witness fees for each side and the record makes it clear that plaintiff had additional experts who were to testify, but were not called as a result of the stipulation.
For the reasons above assigned, the judgment is affirmed.
AFFIRMED.
REDMANN, J., concurs.
The culprit in this litigation is the one who misrepresents what occurred when Adams for plaintiff met with the Jenkinses at their house to inspect the custom-made cabinetry. Adams swears that he offered to correct the defects and the Jenkinses refused to let him do so; the Jenkinses swear that Adams said there were no defects and he refused to do anything. We are not in a position to second-guess the trial judge on credibility.
There were obvious defects, such as the glaring difference in height of two visible, abutting hinges on two cabinet doors (shown in a photograph in evidence) and an admitted error "where the utility bowl goes in the cabinet that was laid out wrong." One who placed those hinges so far off measure very likely would have made other mismeasurements and his eye would equally likely not have noticed those mismeasurements. Defendants did not establish (or even attempt to establish) that equally gross defects were so pervasive as to justify their refusal to allow plaintiff reasonable opportunity to correct the defects. Defendants should have allowed plaintiff that opportunity, and the trial judge resolved contradictory evidence to conclude that they did not do so.