![]() ![]() Then on Januthe clerk-of-the-works complained in writing to Pittman that "the caulking used is pulling away from wood, brick, aluminum and iron and does not appear to be elastic underneath" and that it was not in compliance with the specifications. A supervising architect was called in, and he decided that the caulking was "not too objectionable provided it didn't develop into anything worse." The manufacturer did inspect the work and stated that the "pulling away" was not due to any defect in the caulking compound material. This fact was brought to Minyard's attention, and it was suggested to Minyard that there be an inspection of the work by representatives of the caulking compound manufacturer. Shortly thereafter HANO's clerk-of-the-works noted that the caulking was beginning to pull away from the aluminum. The sample submitted by Minyard was approved by HANO's architects and Minyard commenced the caulking work. In its transmittal of the analysis and representations concerning the compound to Pittman, Minyard endorsed the properties of the compound and guaranteed it would comply with the specifications. The analysis and representations concerning the compound submitted by Plastoid Products, Inc., had in turn been prepared by Plastic Products, Inc., the manufacturer from whom Plastoid Products, Inc., was to purchase the material for resale to Minyard. In an effort to comply with the requirements of his subcontract, Minyard decided upon a "regular Plastoid" caulking compound, which is not the name of a specific material, but, instead, is a generic term and the trade name of several grades of caulking compound manufactured by Plastic Products, Inc., and distributed by a subsidiary corporation Plastoid Products Company, Inc.Īs required by the contract, Minyard submitted to HANO's architects a sample of the "regular Plastoid" caulking compound, together with a chemical and physical analysis of the compound which had been submitted to Minyard by Plastoid Products, Inc., from whom Minyard was buying the caulking compound. Compound shall form a thin tough elastic film on surface but remain permanently plastic underneath * * *." Compound shall be of proper consistency to be readily worked and not be affected by vibrations or long exposure to outside climate or temperature changes. "Caulking compound shall be Kuhl's Plastoid, Pecora, or equal. The subcontract restated those portions of the general contract which were pertinent to the required application of caulking materials it read in part as follows: Minyard was to receive $3,000 for the work *425 and for furnishing the materials. ![]() For the purposes of this construction, Pittman entered into a subcontract with Minyard whereby the latter became bound for the application of caulking materials under Pittman's general contract with HANO. ![]() On Mathe Housing Authority of New Orleans (HANO), as owner, entered into a construction contract with Pittman Construction Company (Pittman) for the construction of Section I of the Desire Street Housing Project (Project). The sole issue presented for this Court's consideration is whether or not appellant's cause of action as set forth in the "Petition for Indemnity" has prescribed under Articles 25 or 3544 of the Civil Code. Writs were granted to review this action. The trial court and the Court of Appeal have sustained Curtis' peremptory exceptions and have dismissed Minyard's suit. Curtis filed peremptory exceptions based upon pleas of prescription of one year for actions in redhibition under Civil Code Articles 25 and of ten years for personal actions under Article 3544. Minyard d/b/a Rockwood Insulation Company (Minyard) filed a "Petition for Indemnity" against Curtis Products, Inc., (Curtis) on November 17, 1965. Cassisa, New Orleans, for defendant-appellee, respondent. Graham, New Orleans, for plaintiff-appellant.īernard, Micholet & Cassisa, Paul V.
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