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Gaston v. Bobby Johnson Equipment Co.11/3/2000
against the seller of the thing, not the purchaser. La. C.C. art. 2545 provides as follows:
A seller who knows that the thing he sells has a defect but omits to declare it, or a seller who declares that the thing has a quality that he knows it does not have, is liable to the buyer for the return of the price with interest from the time it was paid, for the reimbursement of the reasonable expenses occasioned by the sale and those incurred for the preservation of the thing, and also for damages and reasonable attorney fees. If the use made of the thing, or the fruits it might have yielded, were of some value to the buyer, such a seller may be allowed credit for such use or fruits.
A seller is deemed to know that the thing he sells has a redhibitory defect when he is a manufacturer of that thing.
Under this provision, the seller is deemed to know that the thing he sells had a redhibitory defect when he is a manufacturer of that thing. Cross references under the article indicate that a "manufacturer" is defined in La. R.S. 9:2800.53 which provides:
(1) "Manufacturer" means a person or entity who is in the business of manufacturing a product for placement into trade or commerce. "Manufacturing a product" means producing, making, fabricating, constructing, designing, remanufacturing, reconditioning or refurbishing a product. "Manufacturer" also means:
(a) A person or entity who labels a product as his own or who otherwise holds himself out to be the manufacturer of the product.
(b) A seller of a product who exercises control over or influences a characteristic of the design, construction or quality of the product that causes damage.
(c) A manufacturer of a product who incorporates into the product a component or part manufactured by another manufacturer.
(d) A seller of a product of an alien manufacturer if the seller is in the business of importing or distributing the product for resale and the seller is the alter ego of the alien manufacturer. The court shall take into consideration the following in determining whether the seller is the alien manufacturer's alter ego: whether the seller is affiliated with the alien manufacturer by way of common ownership or control; whether the seller assumes or administers product warranty obligations of the alien manufacturer; whether the seller prepares or modifies the product for distribution; or any other relevant evidence. A "product of an alien manufacturer" is a product that is manufactured outside the United States by a manufacturer who is a citizen of another country or who is organized under the laws of another country.
We do not find that Gaston meets this statutory definition of a "manufacturer." We also find that Johnson's argument in this regard is misplaced. Johnson contends that the case of Foust v. McKnight, 95-2008 (La. App. 1st Cir. 5/10/96), 675 So. 2d 1147, writ denied, 96-2117 (La. 11/8/96), 683 So. 2d 277, is applicable to the present facts. In Foust, the defendants had improperly constructed an addition to their house which resulted in water damage and rotten subfloors in some areas of the house. After the defendants sold the house, the buyers sued, alleging that the house had redhibitory defects. The defendants were considered to be a manufacturer because they built the addition and were found to have knowledge of the defects. However, in that case, the manufacturer was the seller of the defective thing. In the case sub judice, Johnson has not shown any authority for applying La. C.C. art. 2545 to the buyer of the thing. Further, as noted above, the trial court had before it all evidence of the buyer's installation and maintenance of the engin
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