Police Jury of Parish of Vernon v. Johnson

Citations

• 111 La. 279
• 35 So. 550
• 1903 La. LEXIS 529

Syllabus

<p>BUILDING CONTRACT — PERFORMANCE — DEFECTS—BOND—LIABILITY OF SURETY—REPAIR.</p> <p>1. A clause in a building contract stipulated: “That the contractor shall at any time when required by the supervising architect, within one year from and after the completion and acceptance of the work herein contracted, make good any and all latent defects not discernible at the final examination and occupation thereof; such as evidence of the use of improper materials and labor.”</p> <p>2. The building was accepted, and payment made. After two years had elapsed, defects became evident. Defects growing out of the use of bad materials were cured under the conditions of the contract. The building was constructed under the direction of an architect, and under the inspection of a building committee. If there were defects of construction, it was not satisfactorily made to appear that they were such as the surety on the bond could be held for.</p> <p>3. The meaning of articles 2762 and 3545, Civ. Code, will be construed strictly as against the surety on a builder’s bond.</p> <p>4. The liability arises (under just cited articles) should “the building fall to ruin either in whole or in part on account of the badness of the workmanship.” It does not appear that the building was falling to ruin in “whole or in part.” It was a valuable building, which was repaired, and the ruin in “whole or in part,” with no very great, difficulty, avoided.</p> <p>5. After delivery' of the building by the builder and acceptance by the contractor, and the expiration of 12 months stipulated in the contract, the contract could no longer, under the circumstances of the case, be violated actively; but, if there was violation, it was passive, and the parties were entitled to notice. Instead, plaintiff chose to have the building repaired, and then made demand for cost of repair, regardless of the right which the builder had to repair the work if repair was due by him. There is no question of fraud or deception on t