Opinion
No. 8354.
June 7, 1978.
APPEAL FROM CIVIL DISTRICT COURT, PARISH OF ORLEANS, NO. 589-946, DIVISION E, STATE OF LOUISIANA, HONORABLE GERALD P. FEDOROFF, J.
Jacob L. Karno, Metairie, and Margaret Duplantier, New Orleans, for plaintiff-appellee.
Robert Scott McIntosh, II, New Orleans, for defendant-appellant.
Before SAMUEL, LEMMON and BEER, JJ.
Plaintiff, National Roofing and Siding Company, confirmed a default judgment which awarded it $2,492, plus 25% attorney's fees in a suit on a roof repair contract and recognized a privilege against defendant's property granted under the Private Works Act (L.R.S. 9:4801, et seq.). Defendant, unrepresented by counsel until after the default was taken, has filed this appeal through her attorney contending: (1) the document upon which the claim is based never ripened into a contract because plaintiff never accepted it; and (2) plaintiff's noncompliance with the lien procedure renders the lien invalid. We agree with the first contention and therefore a consideration of the second is unnecessary.
Plaintiff claims defendant is indebted to it for roof replacement or repairs based on a written contract on a printed form bearing its logo. The alleged contract contains printed stipulations and leaves a space for one of plaintiff's salesmen to describe in handwriting the work required on each individual job. It does contain a handwritten description of the proposed work at 9018 Quinee Street, New Orleans. The signature of Don Ferrill is affixed on a line designated for use by a "Salesman". The only other signature on the document is the defendant's.
The "terms and conditions" section states in part:
"This contract is binding, subject only to acceptance by an executive of the company who reserves the right to reject it without liability on its part.
It is agreed that this contract, properly accepted as above provided, shall constitute the entire agreement between us." (Emphasis added).
No executive officer of plaintiff signed the instrument, which by its own terms requires express acceptance by a plaintiff executive, nor does the record contain any evidence even suggesting any such acceptance did occur. Civil Code Article 1798 provides a contract comes into being when something proposed by one is accepted by another. The agreement remains incomplete until the offer is accepted. Civil Code Article 1800. In this case plaintiff cannot base a claim on a written agreement which by plaintiff's own stipulations never became binding.
The document then does not support the judgment which is based on the alleged contract. Code of Civil Procedure Article 1702 provides default judgments must be based on evidence sufficient to establish a prima facie case. See Blackwell v. Daigle, La.App., 317 So.2d 18. Nor does the record warrant judgment on any other basis. Civil Code Article 2277 permits verbal agreements for the payment of more than $500 to be established by the testimony of one credible witness and other corroborating circumstances. Here, James W. Hughes, plaintiff's office manager, was the only witness.
For the reasons assigned, the judgment appealed from is annulled and set aside and this matter is remanded to the trial court for further proceedings consistent with law and with the views herein expressed. Plaintiff is to pay all costs of this appeal.
ANNULLED, SET ASIDE AND REMANDED.
LEMMON, J., concurs with written reasons.
After defendant offered in writing to pay $2,200.00 (plus an extra charge to replace any rotted sheathing) for the work outlined in the salesman's proposal, plaintiff corporation (according to the allegations) accepted the offer by performing the work. This record, however, contains no competent evidence that the work was in fact performed. Therefore, the default judgment is not supported by the record evidence, which is insufficient to prove entitlement to a judgment based on the disputed document or on any other contractual or quasi-contractual basis.
If the record established that all of the work outlined in the document had been performed, plaintiff would be entitled to a judgment in the amount defendant indicated was reasonable for this work, although perhaps plaintiff could not collect specifically on the written document and thus arguably would not be entitled to attorney's fees provided for in the document.
The only evidence relative to performance is the office manager's statement, apparently based on secondhand information, that "(w)e removed her present roof and put on a new one".
For these reasons I concur in the decision to annul and set aside the default judgment.