*236C.F.Peterson,Appellant. vs Mrs E.Mc Cluskey and husband.

No.8853

This is a suit for $292.10 claimed as balance due on a building contract.

The plaintiff alleged that on December 30th 1919 .he agreed with defendants to build for them according to plans and specifications,two houses bearing Nos.4421 and 4621'South Johnson Street}that said buildings were completed and accepted in June 1920} that on July 3rd 1920 and^dlfferent dates anterior

thereto,petitioner received on account 87,707.90

leaving a balance due of 292.10

$8,000.00

which‘balance was retained as a security against a threated claim of one Jones,a subcontractor'that although Jones has made no claim and the time for recording same .has elapsed, defendant refuses to pay petitioner.

For answer,the defendants alleged that shortly after bney had accepted the buildings they discovered the following defects in them:

1st The weather boards split and improperly Joined}

2nd The roof leaked}

3rd. The house sank on acoount.of defective, and. improper foundations and,

4th. Repainting and glazing the building}

That Mrs Mo Oloskey notified plaintiff of theao

defects and he promised to correct them,and authorized her té do so}that accordingly she had the repairs made-at the following expense:

1st. Repairs.to weather boards. $124.40

2nd. Repairs to roof 173.26

3rd. Raising building 100.66

*2374th Repainting building and glazing 382.76

making a total of $720.95

Defendants paray that plaintiff’s suit he dismissed and for judgment in reconvention for $720.95 .

There Tías judgment in favor of defendants dismissing plaintiff's suit,and dismissing the reoonventional demand for want of jurisdiction.

The plaintiff has appealed.

The defendants have not appealed,nor have they asked in this Court for an amendment of the judgment.

The sole question for determination therefore is, is plaintiff entitled to judgment?

The rule of law is that a contractor is obligated to construct a building in a workmanlike manner both as to material and workmanship,and fitted for the purpose foe which it is built .14 CT.App.7

If he fails to do so.it is 'an active violation of contract. ' hisAand he need not be put- in default .6 N.S.200 - 3 La 331-9 La 174-6 A 293-14 A -81-34 A 209-37 A 468-47 A 1235-39 A 587-110 La 750-124 -126 La 190-17 A 203 .

The owner may dot the work which the contractor has failed to do,or repair that which he has done Imperfectly,at the expense of the contractor and deduct the cost from the contract price.C.C.2769-9 La 174-50 A 351-6 A 202-2-H.D.p.1025 No.4-6 A 202-12 Ct.App.126 .

An owner who receives and pays for buildings and uses them not completed or defectively constructed is not there* by deprived of his right to complete them or repair them at the expense of the contractor or claim damages.4 N.S.105-17 A 203 25 A 518-30 A 897-34 A 214-36 A 332-110 La 124-766-111 La 284 .

A purchaser may not sue for the redhibition of a *238sale after he has sold the thing purchased hy himjhut he nay sue for a reduction of the orlos.1 N.S.312-10 A 188-189-48 A 445 446-114 La 503 .

In.sales of real estate defects of construction e*>fc or want of repairs are .considered as apparent defects for which the purchaser has no recourse against the vendor-6 A 386 .

Weather Boards!

The testimony of a ’disinterested witness,a contractor and builder,is that the weather hoards were split bf nailing them, that the ram went through them} that he was employed hy the defendant to make the necessary repairs}that he changed 660 hoards,touched up all the windows and doors and the sleeping porch and arch}the settling of a house does not cause weather hoards to split unless the settling is six or eight inches}his hill was |134.40 which the defendant paid him.

ii Repairs to roof.

The repairs to the roof were made only after the defendant had Bold the house.The defendant's purchaspr discovered the leaks only after the sale}they therefore had no influence upon the price of the sale .At that time the defendant was under no legal obligation to repair-the roof} 6 A 386' .

Therefore she cannot recover against her vendor.

Ill Raising the building .

The specifications were prepared hy the plaintiff and he is responsible for.their defects.We do not agree with him that he prepared the specifications from the plan furnished to him hy the defendant.The defendant's explanation,which we believe correct is thus stated hy hers " X had the plan which X saw Mr Duhourg have a few minutes ago.I brought that plan up .to Mr- Peterson and asked him to build a house similar -to *239that -planj and there w«r®- about .a dozen' changes made on that plan and X'asked him. If X should Save án Architect -draw a bew plan with tHe.se changes on .It and .He said no,He would fix it -allrigH.t,He would -do .We believe. tHat this plan was given by the defendant.to tHe plaintiff merely to serve as a .model for tHe''general distribution of tHe House,but tHat tHe method. and material's for- building tHe same were fixed by tHe -plaintiff in-Hi's' specifications .As-a contractor and builder He was bound to warrant that foundatidn^Laid by Him would be Sufficient to support tHe,building,The defendant paid One Hundred dollars for raising the building and reinforcing the foundations.She is entitled to deduct that amount from what She owes -to plaintiff.

IV Repainting building.

The painting done by the plaintiff is thus described by a witness*

f The exterior, of-the House looked as if a lot of // school .Hoys..Had tried to paint it.

^TH© -nutty was falling out of. the windows and the panes were falling out also.Somehad no brads in it at all.The whole house had to ho reglazed.The weather hoards,some looked as. if they had one coat and some others looked as If they tried to paint it with paint- and others looked as if they tried to' put oreosote on it " ^

Besides^ the yip ne.w weather■ bos-rfl <= bad to be pai-rift-4ed anew.

The painting .cost $218 which defendant may aieo deduct from the contract price.

We think' it is .shown that plaintiff was notified of the -defects in the buildings and was called iipof to rapai* them,and that .he failed.to.do it.

These three- items-make a total larger, than-,the balance said by-plaintiff to-be dú©.-to -him. by the-'defendant.The-plaintiff *240la therefor» not entitled to. recover anything from the defendant She 'Judge of the City Court so ordered and his judgment is affirmed.

Judgment affirmed.

liapeh- April 2nd 1923 .