Cleaners Equipment Corp. v. Weil Cleaners , 178 So. 771 ( 1937 )

The pleadings, the issues, and the facts of this case are thoroughly and accurately discussed and analyzed in the opinion heretofore rendered by this court. In the interest of brevity, we shall not iterate them beyond the necessities of the present reconsideration of the case.

We reached the conclusion that defendant was without right to have the contract of sale involved rescinded because of the alleged redhibitory vices in the chattels the subject thereof, and gave judgment against it for the full balance due on the purchase price. In many respects the soundness of the reasons assigned and conclusions reached by us precedent to decree are vigorously assailed by counsel in application for rehearing and in supporting brief. Further study of the record has left us unconvinced of the tenableness of defendant's contention that the sale should be rescinded and the status quo ante restored as far as possible. It was argued alternatively, and forcefully so, that even though there be no valid grounds for rescinding the sale for the reasons alleged, that the rule in actions quanti minoris should be applied and the price reduced to the amount already paid thereon. In order to give deserved attention to this alternative plea, raised for the first time in application therefor, a hearing was granted.

Defendant has been for several years engaged in the business of cleaning clothes in the city of Monroe, La., and on May 26, 1931, purchased from plaintiff a lot of equipment to be employed in clarifying the solvent used in dry cleaning and removing impurities therefrom. The equipment was installed by plaintiff's agent, as agreed, and accepted by defendant on June 17, 1931; $75 cash was paid on the price and an additional credit of $50 given thereon, being the value of some old equipment taken over by plaintiff in the trade. The balance of the price was to be paid monthly, beginning August 15, 1931, and ending July 15, 1933, the first eight of which were paid at maturity. The equipment was used continuously until April, 1934, at which time it was replaced by new equipment. During the period of use, the evidence discloses, defendant's gross business amounted to some $500 per week. It is not contended that any business or customers were lost on account of the alleged deficiencies in or lack of expected functioning of the equipment.

We are convinced from the testimony bearing thereon that the new system did not at times function perfectly and that, because of this, more or less inconvenience was intermittently experienced. Whether the lack of efficiency in this respect was due to inherent imperfections in the mechanism or to the incompetency or inexperience of the operators, or to some extent to both, the record is not convincing. But, when we recall that the system was in use continuously for practically three years and through it a large volume of business was regularly turned out, and that there was no loss of patronage during the time from the alleged deficiencies in the system, we are impelled to think that for other reasons the lack of functioning of the system has been to a material extent exaggerated. Defendant's president alone testified of the shortcomings of the system. He said that some of his employees threatened to leave him unless the operating qualities of it were improved. None of the complaining employees was introduced as a witness in the case. He also testified that the faulty qualities of the system manifested themselves within thirty days after installation; yet more than once thereafter he expressed satisfaction with it, and as late as September, 1931, in a letter to plaintiff, in no uncertain terms, he expressed enthusiasm over his investment; and in this letter he made mention of the fact that he knew two other cleaners who were potential prospects for the purchase of like systems. He virtually said therein that his own enthusiasm over the system's efficient operation should have some influence with these two prospects; however, in this letter, he reiterated the complaint previously registered in regard to a tank and the extra fittings which he had to purchase and pay for, previous to installation of the equipment.

As expressed in our former opinion, the fact that defendant was compelled to expend over $100 above the cost price of the equipment for the tank, piping, and fittings to complete its installation to some extent prejudiced it against plaintiff and the system, and when, from its operation, the increased expense thereof over that of the old equipment was revealed, defendant's dissatisfaction became complete. However, as to this expense of operation of the new plant, defendant made no guarantee.

The action quanti minoris is founded upon the following articles of the Revised Civil Code, viz.:

Article 2541: "Whether the defect in the thing sold be such as to render it useless and altogether unsuited to its purpose, or whether it be such as merely to diminish the value, the buyer may limit his demand to the reduction of the price."

Article 2542: "The buyer may also content himself with resorting to this action, when the quality, which the thing sold has been declared to possess and which it is found to want, is not of such importance as to induce him to demand a redhibition."

Article 2543: "The purchaser who has contented himself with demanding a reduction of the price, can not afterwards maintain the redhibitory action. But in a redhibitory suit, the judge may decree merely a reduction of the price."

To justify judicial reduction in the price of a chattel, there must be before the court evidence satisfactorily establishing the extent to which the price should, to meet the ends of justice, be scaled down. In Ehrlich v. Roby Motors Co., 166 La. 557, 562,117 So. 590, 592, the court said: "In order to entitle one to a diminution of the price, he must not only show that the defect complained of existed at the time of the sale, but he must also show with reasonable certainty facts disclosing the amount of the reduction to which he is entitled. Lowe and Pattison v. Nelson, Bradley Co., 7 La.Ann. 646; Bonzano v. Auze, 10 La.Ann. 188." Galt v. Herndon, 16 La.App. 239, 133 So. 800. See, also, Twin City Motor Co. v. Pettit et al., 177 So. 814, by this court.

The last expression of the Supreme Court on the questions here discussed is to be found in Sidney Mach. Tool Co. v. Blanchard,186 La. 476, 172 So. 532. That case is urged by defendant in support of its alternative position. Under that decision, it is beyond question that defendant herein has been properly held to have accepted the equipment sold to it by plaintiff, and not entitled to have the sale thereof rescinded, but it is further held therein that by such an acceptance of and the continued use of the property the purchaser did not lose his right, if any exists, to demand a reduction of the price. In that case, a reduction in the price was allowed. Presumably, of course, there was evidence adduced to predicate this action upon. There is no testimony in this record upon which to base a reduction of the price, and it is doubtful if the inconvenience suffered because of the cleaning system's intermittent reduced functioning, if measured in dollars and cents, is susceptible of proof. We are of the opinion that no good purpose would be served by remanding the case for the reception of evidence on this issue, and

For the reasons herein assigned, our former judgment and decree are reinstated and made final.

Since the foregoing opinion was written, a motion has been filed in this court by Doniel B. Weil, wherein it is alleged that he has acquired all of the assets and has assumed all of the liabilities of Weil Cleaners, Inc., and prays to be substituted as defendant in the case, and an order has been signed to that effect; therefore, the said Doniel B. Weil is substituted as defendant herein and the judgment heretofore rendered against Weil Cleaners, Inc., is now rendered and made effective against him.