Defendant, Donald Petrere, doing business as Scenic Trailer Sales, appeals from a judgment of the trial court which dissolved and set aside the sale of a 1952 Kit Companion trailer because of a redhibitory vice and awarded plaintiff, Mrs. Catherine Dougherty, $2,055, the full amount of the purchase price.
In the latter part of 1956, plaintiff, an elderly widow of approximately sixty-nine years of age, who was living in an old trailer which had become uninhabitable, was interested in purchasing a house trailer which she hoped would last her the remainder of her life. Her income from Social Security was meager. She solicited
On January 5, 1957, Mrs. Dougherty purchased the trailer for a cash consideration of $1,995, plus tax of $60 ($2,055). The act of sale read: "This car accepted as is, except for the repairs listed."
Approximately one month after the date of purchase, Mrs. Dougherty was able to make financial arrangements for payment of the trailer, and it was then moved by defendant to a site selected by Mrs. Dougherty. However, because of the condition of the ground (wet and soggy), the trailer was not placed on the spot of permament location nor was it occupied by Mrs. Dougherty at that time. A short time later, Mr. Jewell Mason, with some difficulty, moved the trailer to the spot of occupancy.
Mrs. Dougherty spent her first and only night in the trailer in the early part of March, 1957, at which time there was a heavy rain which caused considerable leakage of water into the trailer accompanied by property damage. Close inspection of the roof revealed that it was hole pitted
Mr. Petrere was informed of the condition of the roof and of the damage suffered by Mrs. Dougherty, and he suggested that she secure an estimate of the cost of repair. She obtained an estimate of $150, which Mr. Petrere refused to pay. Mr. Petrere secured two estimates—one for $100 and one for $75—which he refused to accept.
Mrs. Dougherty, who was residing in her old trailer but continuing to make payments
Mrs. Dougherty declined an offer of an adjustment of $50 from the purchase price and brought the instant suit. She alleged that the trailer leaked badly, causing it to be unlivable and useless for her purposes which she had declared to defendant at the time of sale; that she had never lived in the trailer (other than the first night), because of dampness caused through leakage; that the trailer contained defects and vices which could not have been discovered by simple inspection; that she was not aware of the existence of same, and that they were not declared by defendant, who gave his guarantee and warranty against any and all defects or vices; and that the failure of the defendant to apprise her of the existence of the defects and his false statements constituted fraud and bad faith entitling her to return of the purchase price. Plaintiff alleged tender, which was admitted by defendant in his answer; defendant's answer was otherwise in the form of a general denial.
Appellant contends that the judgment of the trial court should be reversed because of the following reasons:
The evidence discloses conclusively that the trailer leaked excessively the first night plaintiff occupied it. Not being able to make an amicable settlement with defendant, she had no other recourse than to leave the trailer unoccupied. Plaintiff alleged in Article VII of her petition that she tendered the trailer to defendant; defendant in Article VII of his answer admits Article VII of plaintiff's petition. Both counsel admitted the tender during argument in this Court.
A review of the evidence convinces us that Mrs. Dougherty was sincere in expressing her desires and needs to defendant at the time she purchased the trailer. She definitely informed him of the purpose for which she wanted the trailer, namely, a home.
Defendant had purchased the trailer from Major Walter S. Black, on approximately December 1, 1956. Major Black, whose vendor was not available at the time of trial, had bought the trailer for trade-in purposes and had had it for only three weeks; he testified that he had no difficulty with leakage during his short period of ownership. Mr. Petrere truthfully believed that the trailer was constructed of aluminum; he had not, however, concerned himself with close inspection or observation of the roof. There was no bad faith or fraud on his part, just mistaken belief.
The seller warrants the buyer against the hidden defects of the thing sold or its redhibitory vices. Article 2476, Revised Civil Code.
The vendor warrants the thing sold to be fit for the purpose for which it was intended. Roses v. Patorno, 2 La.App. 292.
Applying the law to the facts of this case, we find that plaintiff bore her burden of proving that the trailer possessed a latent defect; that such defect, although it had not manifested itself, existed before plaintiff purchased the trailer; that the defect was not apparent; that the defect rendered the trailer useless to plaintiff; and, that the trailer was unfit for the purpose for which plaintiff purchased it.
Redhibition does not lie where a purchaser has sold or used property to such an extent that it cannot be returned to the seller in substantially the same condition as when sold. Poor v. Hemenway, 221 La. 770, 60 So.2d 310; Reech v. Coco, 223 La. 346, 65 So.2d 790. But, the facts of the instant case show that plaintiff notified the defendant of the trailer's leakage immediately after its occurrence, and that she fruitlessly attempted to have him repair the trailer. Tender was made, supra. Plaintiff is, therefore, not responsible for the trailer's present condition of deterioration.
While it is true that in redhibitory actions a reduction of the price may be decreed, LSA-C.C. Article 2543, we do not find that this case justifies such action.
Plaintiff attempted to enlarge the pleadings by evidence, but the record discloses that the trial court restricted her testimony to the condition of the roof of the trailer.
For the reasons assigned, the judgment of the trial court is affirmed. All costs are to be paid by appellant.
HAWTHORNE, J., absent.