text:
    Jack DANLEY, et ux., Plaintiff-Appellee, v. STATE of Louisiana EMPLOYEES GROUP BENEFITS PROGRAM and the Trustees of the Sheriffs’ Pension Fund, Defendants-Appellants.
    No. 15155-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 17, 1983.

      LaCroix & McKeithen by Bruce B. McKeithen, Monroe, Charles L. Little, III, Oak Grove, for plaintiff-appellee.
    Grant, Dean & Kneipp by Y. Gerald Dean, Monroe, for defendant-appellant, Sheriffs’ Pension & Relief Fund.
    Tommy D. Teague, Asst. Atty. Gen., Baton Rouge, for defendant-appellant, State of Louisiana Employees Group Benefits Program.
    Before JASPER E. JONES, FRED W. JONES, Jr. and SEXTON, JJ.
   SEXTON, Judge.

The two defendants herein, the State of Louisiana Employees’ Group Benefits Program and the Board of Trustees of the Sheriffs’ Pension and Relief Fund, both appeal an in solido judgment in the amount of $4,770.97 rendered against them in the trial court. The plaintiffs Mr. and Mrs. Jack Danley had sued these defendants to be reimbursed certain medical expenses incurred by Mrs. Danley as a result of a colon by-pass operation. In rendering judgment for the plaintiffs, the trial court found both defendants were negligent in handling Mrs. Danley’s request to be added to her husband’s group insurance program through the defendant State of Louisiana Employees’ Group Benefits Program, (hereinafter referred to as “Employees’ Group”). Previously the trial court had overruled the decli-natory exception of improper venue filed by the defendant, Board of Trustees of the Sheriffs’ Pension and Relief Fund, (hereinafter referred to as “Sheriffs’ Fund”). Although there are several assignments of error by each defendant-appellant, they resolve themselves into two legal issues. First, did the trial court err in overruling the Sheriffs’ Fund’s venue exception? Secondly, did the trial court err in applying negligence principles to this cause and then finding each of these defendants had breached a duty to these plaintiffs? We answer both affirmatively, and accordingly reverse.

Mrs. Danley married Mr. Danley, a retired West Carroll Parish Sheriff’s deputy on July 1, 1979. At that time, Mr. Danley had medical insurance through the Employees’ Group. However, no effort was made to add Mrs. Danley to the Employees’ Group until February 20, 1980, when Mrs. Danley called the office of the Sheriffs’ Fund in Monroe, speaking to Mrs. Betty S. Griffith, an administrative assistant. Mrs. Danley inquired of Mrs. Griffith as to whether she could be added to her husband’s coverage.

Mrs. Griffith testified that she called the Baton Rouge office of the Employees’ Group and talked to an unknown party who advised her that Mrs. Danley could be covered by the filing of a certain change document. Mrs. Griffith, on that same day, prepared such a form and sent it to the Employees’ Group along with a letter inquiring whether any other action was necessary to accomplish coverage. Thereafter, still on February 20, Mrs. Griffith advised Mrs. Danley that coverage was available.

On March 3, approximately 11 days later, Mrs. Danley talked to a Minden physician concerning colon by-pass surgery and she was advised that the operation could be performed if she could present evidence of insurance. At Mrs. Danley’s request, Mrs. Griffith wrote a letter to the Minden doctor advising that coverage existed, and enclosing therewith a copy of the transmittal letter with which Mrs. Griffith transmitted the change form in attempting to secure Mrs. Danley’s coverage with the Employees’ Group. In writing the doctor Mrs. Griffith stated:

“Per the attached copy of my letter of February 20, 1980, addressed to Group Insurance Section, Baton Rouge, Louisiana, please be advised that Melba Danley has hospitalization coverage under the State of Louisiana Group Insurance Policy with CNA Insurance Company effective March 1, 1980.”

The operation was performed on or about March 10 and thereafter the claim for the expenses attendant thereto was submitted to the Employees’ Group. It was denied.

It should be noted that the Employees’ Group is an entirely different entity from the Sheriffs’ Fund and has no agency relationship with it. The only function performed by the Sheriffs’ Fund for its members, related to Employees’ Group, is the deduction of the premiums from retirement checks and the remission of the premiums to the Employees’ Group.

The Employees’ Group, which has some 100,000 members, serving some 400 state agencies, denied receipt of Mrs. Danley’s application which Mrs. Griffith had forwarded on February 20. Employees’ Group official Mr. Baugh testified that there was no indication in the Employees’ Group computer file that the application had ever been received. Mr. Baugh, whose duties included making determinations of eligibility, stated that he had no knowledge of the application or the preceding phone call. The Sheriffs’ Fund was never invoiced by the Employees’ Group for Mrs. Danley’s coverage, although Mrs. Griffith altered the Employees’ Group invoice with respect to Mr. Danley and included a premium to the Employees’ Group for Mrs. Danley’s coverage. The record indicates that the first premium sent by Mrs. Griffith for Mrs. Danley was not received until the latter part of March, subsequent to the surgery and the incurring of the expenses attendant thereto. When the Employees’ Group realized it had received such premiums it advised the Sheriffs’ Fund to take credit for them on their next invoice.

Mr. Baugh also testified that a wife of a retired member who failed to apply for coverage within 30 days of eligibility (which occurred at the time of her marriage to the retired member) could never obtain coverage. He further testified that even if coverage were available, that she would have been required to submit evidence of insura-bility and that pre-existing conditions would not have been covered for at least one year following the date of coverage. It should be noted that Mrs. Danley, prior to her operation, weighed approximately 250 pounds and was 5'6" tall, indicating a preexisting condition which the surgery was designed to correct.

In this regard we note that the coverage policy pamphlet admitted as joint exhibit # 1 entitled “State of Louisiana Employees Uniform Group Benefits Program,” by our reading, does not require that a dependent of a retired member must apply for coverage within 30 days of obtaining that status. However, it is clear that any person who applies later than 30 days after becoming eligible is subject to a pre-existing condition limitation of at least 12 months. Also it is clear that on a late application such as that of Mrs. Danley, the applicant must file certain additional statements and there is a longer delay before coverage is effective. Thus Mrs. Danley could not have been covered before April 1.

We begin by analyzing plaintiffs’ claims against the Sheriffs’ Fund, and do not reach the substantive merits of plaintiffs’ claims against that defendant because the procedural issue of venue is dispositive here. We hold that the parish in which the plaintiffs filed their suit was a forum of improper venue for a suit against the Sheriffs’ Fund, and therefore reverse the trial court’s decision overruling the declinatory exception of improper venue.

The sole pertinent fact in our venue analysis is that plaintiffs brought suit in their domicile parish, West Carroll, while the domicile of the Sheriffs’ Fund is in East Baton Rouge. There are several statutory provisions which could serve as putative authority for the proposition that West Carroll Parish was a proper venue for the Dan-leys’ suit against the Sheriffs’ Fund. However, a careful examination of the pertinent statutory language leads us to conclude that LSA-R.S. 33:1451 is the directly controlling statutory enactment, and that only East Baton Rouge Parish is a forum of proper venue for suits against the Sheriffs’ Fund.

LSA-R.S. 33:1451 provides, in pertinent part, that the Sheriffs’ Fund:

“shall be domiciled in the City of Baton Rouge, Louisiana, [in East Baton Rouge Parish] where all suits against it must be instituted .... ” (emphasis added).

Thus, the legislature has unequivocally expressed its intent that suits against the Sheriffs’ Fund be filed in East Baton Rouge Parish. We further note that this intention has been expressed in mandatory terms. To conclude that East Baton Rouge was intended to be an appropriate, but merely optional forum, would be to commit a great disservice to the legislature’s clearly expressed intent. Furthermore, in existence, but not effective until September 12, 1980, some five weeks after this suit was filed, was Act No. 164 of 1980 which established Article 84 of the Code of Civil Procedure. That article states in pertinent part:

“Actions involving the ... Sheriffs’ Pension and Relief Fund ... shall be brought in the parish of East Baton Rouge or in the parish of the domicile of the retirement system .... ” (emphasis added).

Thus Article 84, which establishes venue for a number of state retirement systems, is further evidence of the strong legislative intent embodied in LSA-R.S. 33:1451.

For the sake of treating the venue isgue comprehensively, however, we briefly analyze other sources of statutory authority for the proposition that this suit could have been brought in West Carroll Parish. LSA-C.C.P. Art. 73 stipulates that:

“An action against joint or solidary obli-gors may be brought in any parish of proper venue, under Article 42, as to any obligor who is made a defendant.”

Article 73 could be urged as authority for the proposition that West Carroll Parish was a parish of proper venue under the theory that if that parish was a forum of proper venue as to the Employees’ Group it was also proper as to the Sheriffs’ Fund, since the Sheriffs’ Fund is alleged to be the Employees’ Group’s solidary co-obligor. Article 73 cannot be availed here to secure venue in West Carroll Parish for the simple reason that West Carroll Parish is not a forum of proper venue under Article 42 for a suit against the Employees’ Group. The Employees’ Group is a statutory board domiciled in Baton Rouge, LSA-R.S. 42:871, having the powers and duties of a corporation, LSA-R.S. 42:874(A). It therefore technically has no “registered office” as per Article 42(2). As to this statutory state board, any “registered office” is obviously its domicile of East Baton Rouge Parish. We therefore conclude that Article 73 does not supply venue against the Sheriffs’ Fund in West Carroll Parish because West Carroll Parish is not an appropriate forum under Article 42, for suing its alleged solidary co-obligor, the Employees’ Group.

LSA-C.C.P. Art. 76 constitutes another potential statutory basis for the argument that West Carroll Parish was a forum of proper venue for the plaintiffs’ suit. This statute provides, in pertinent part, that:

“An action on a health and accident insurance policy may be brought in the parish where the insured is domiciled, or in the parish where the accident or illness occurred.”

Although this statute could constitute authority for the proposition that West Carroll Parish was a forum of proper venue if it were applicable, this statute is, by its very terms, inapplicable to our situation. It provides venue for actions on insurance contracts. The problem here is that this suit was not lodged pursuant to an insurance policy. In point of fact, Mrs. Danley did not even possess an insurance policy in this case. There was no insurance contract in existence which regulated the relations of Mrs. Danley and the defendants herein. Mrs. Danley did not, as the statute envision, bring “an action on a health and accident policy,” for the simple reason that in the context of this suit no such policy ever existed. Article 76 predicates its own operation upon the existence of an insurance contract, and because no such contract existed in this case, this article is by its own terms inapplicable.

Additionally, even if this action can be said to be a suit on a policy of health and accident insurance, this general proposition of venue conflicts with the more specific dictates of LSA-R.S. 33:1451 (and LSA-C. C.P. Art. 84) which stipulates that all suits against the Sheriffs’ Fund must be lodged in East Baton Rouge Parish. We adhere to the venerable rule of statutory construction which dictates that in statutory conflicts, the more specific enactment should prevail over the more general. Thus, we give effect to the more specific statutory rule of LSA-R.S. 33:1451 (and LSA-C.C.P. Art. 84) which states that the Sheriffs’ Fund is to be sued in East Baton Rouge Parish, rather than the more general rule of Article 76. We note with particular emphasis that LSA-R.S. 33:1451 (and LSA-C.C.P. Art. 84) does not undertake merely to establish an optional forum for suits against the Sheriffs’ Fund. This statute mandates that “all ” suits against the Sheriffs’ Fund “must” be brought in East Baton Rouge Parish. Thus, it clearly indicates the redactors’ intent that East Baton Rouge Parish is the sole parish in which proper venue exists for a suit against the Sheriffs’ Fund.

LSA-C.C.P. Art. 74 supplies the predicate for plaintiffs’ strongest argument that West Carroll Parish constituted the proper forum for their suit against the instant defendants. This statute states that:

“An action for the recovery of damages for an offense or quasi offense may be brought in the parish where the wrongful conduct occurred, or in the parish where the damages were sustained.”

This article, by providing that venue is proper in the parish where “the wrongful conduct occurred” and “where the damages were sustained,” supports the contention that West Carroll Parish was a parish of proper venue under two distinct theories. West Carroll Parish could be urged as the parish of proper venue under the theory that the “wrongful conduct” — Mrs. Griffith allegedly negligent representations — occurred there. Alternatively, West Carroll Parish could be postulated as the parish of proper venue under the theory that the damages — the $4,770.97 debt — were sustained there.

While this reasoning is persuasive, we do not find it to be dispositive. Article 74 states a general rule of venue applicable to all offenses and quasi offenses. Thus for the same reasons just expressed with respect to Article 76 being superseded by the more specific dictates of LSA-R.S. 33:1451, Article 74 is likewise superceded by that specific statute.

Having examined all applicable provisions of Louisiana’s venue law, we must necessarily conclude that the Louisiana legislature intended that only East Baton Rouge Parish be considered a forum of proper venue for a suit against the Sheriffs’ Fund. We thus reverse the trial court’s decision to overrule the declinatory exception of improper venue urged by the Sheriffs’ Fund, and sustain that exception, holding that West Carroll Parish was not the forum of proper venue for a suit against the Sheriffs’ Fund. Since the venue for that suit was improper, and since this deficiency was not waived but was proeedurally urged, the suit against the Sheriffs’ Fund is hereby dismissed without prejudice and the trial court’s judgment against that agency is accordingly reversed.

We now treat the substance of plaintiffs’ claims against the Employees’ Group, since that agency did not raise any proeédural issue that would pretermit the disposition of this claim on its substantive merits. Having examined the facts of this case, we reverse the trial court’s decree that the Employees’ Group is liable to the plaintiffs in the amount of $4,770.97, finding that the Employees’ Group did not cause the plaintiffs’ compensable damages through the breach of a duty.

The trial court held that the Employees’ Group had negligently caused the plaintiffs harm and was therefore liable to them in tort. This holding was wholly predicated upon two omissions on the part of the Employees’ Group. The trial court expressly delineated these two crucial omissions in its written reasons for judgment:

“(1) failure to promptly take action on the February 20th letter which was presumably received since never returned unclaimed;
(2) receipt of premiums and failure to promptly deny coverage until loss incurred;”

We fully understand that the trial court sympathetically responded to the administrative confusion in which Mrs. Danley was engulfed. However, we conclude that the judgment against the Employees’ Group was without adequate basis in tort law.

In assessing the first allegedly negligent omission on the part of the Employees’ Group — “their failure to promptly take action on the February 20th letter” — we note that this omission cannot be the predicate of tort liability absent the existence of a legal duty owed by the Employees’ Group to the Danleys and the breach of that duty. The facts salient to an analysis of this allegedly negligent omission are that Mrs. Griffith of the Sheriffs’ Fund sent a letter to the Employees’ Group on February 20th, asking for a verification of Mrs. Danley’s coverage, and that Mrs. Danley had surgery on March 10th. We presume in the first instance, that it took approximately two days for the letter to get from Mrs. Griffith’s office to the Employees’ Group’s office in Baton Rouge. Assuming then, that the Employees’ Group received the letter on February 22nd, and that any return mail would be at least two days in transit, the Employees’ Group would have had approximately 14 days to respond to the inquiry of Mrs. Griffith.

Implicit in the trial court’s decree that the Employees’ Group was negligent in failing to respond before Mrs. Danley’s surgery, is the supposition that the Employees’ Group possessed — and violated — a duty to mail a response to Mrs. Griffith’s request for verification in 14 days. The Employees’ Group, of course had an obligation to insure Mrs. Danley if the application was proper. However, 14 days, in our view, is not an unreasonably lengthy lapse of time in which to respond to such a request. Indulging a 14 day delay before responding to a request for coverage verification does not constitute an unreasonably risk-creating omission. Thus, while we would agree that this state group insurer has a duty to respond to a verification request with reasonable promptness, we hold that in this situation the Employees’ Group did not have a duty to respond within 14 days, since such an omission is not an unreasonably dangerous or foreseeably risk-creating omission.

The second allegedly negligent and liability incurring omission attributed by the trial court to the Employees’ Group was its receipt of the premiums remitted by Mrs. Griffith and its subsequent failure to promptly deny coverage. We reject the notion that the failure to deny coverage upon receipt of the premiums furnished a basis for tort liability for the simple reason that this alleged omission did not cause the injury complained of.

What is important, in this analysis, is that the first premium remitted to the Employees’ Group from Mr. Danley’s pension check by Mrs. Griffith, reached the Employees’ Group after Mrs. Danley’s operation. Thus even if the Employees’ Group had promptly denied coverage upon receipt of the premiums — and in fact the record reveals that they did respond with reasonable promptness — Mrs. Danley’s surgery would have already been completed. Thus, the Employees’ Group’s alleged breach of its duty to promptly respond to receipt of the premiums cannot, in the strictest sense, be said to have caused the damage complained of— the medical expenses incurred by the surgery. The alleged breach of this duty was in no sense a cause of the damages complained of.

At this point, we note parenthetically with respect to plaintiff-appellees’ correct assertion that Louisiana does not adhere to the theory of the case rule, that even if a contract of insurance could have been said to have existed between Mrs. Danley and the Employees’ Group that it is clear that the operation forming the basis of plaintiffs’ complaint would not have been covered. Recall that we have previously noted that Mrs. Danley obviously suffered a preexisting condition which this operation was designed to correct. Furthermore, even if that condition would somehow have been covered, it is clear, as we also noted earlier, that Mrs. Danley, as a “late applicant,” would not have had her coverage effective prior to April 1st, subsequent to the operation.

For the forementioned reasons, we hereby reverse the judgment rendered by the lower court holding the Employees’ Group and the Sheriffs’ Fund solidary liable to the plaintiffs. We hold that the Sheriffs’ Fund was incorrectly cast in judgment insofar as the trial court erred in failing to sustain the declinatory exception of improper venue urged by the Sheriffs’ Fund. We furthermore hold that the Employees’ Group was incorrectly cast in judgment insofar as it did not violate a legal duty by failing to respond to a request for verification in 14 days, and did not cause any damages by virtue of its failure to deny coverage upon the receipt of premiums.

Therefore, plaintiffs’ demands against the Board of Trustees of the Sheriffs’ Pension and Relief Fund are dismissed without prejudice, and plaintiffs’ demands against the State of Louisiana Employees’ Group Benefits Program are dismissed with prejudice, all at plaintiffs’ costs.

REVERSED AND RENDERED.


source: Caselaw Access Project

author: NORRIS, Judge.

license: Public Domain

text:
    The BLEACHERS CLUB OF MONROE, LTD., Plaintiff-Appellant, v. CITY OF MONROE, et al., Defendant-Appellee.
    No. 15159-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 17, 1983.
    Charles W. Robinson, Monroe, for plaintiff-appellant.
    William E. Armstrong, Monroe, for defendant-appellee.
    Before HALL, SEXTON and NORRIS, JJ.
   NORRIS, Judge.

The Bleachers Club of Monroe, Ltd. appeals a judgment of the district court upholding the action of the Monroe City Council denying it a Class E liquor permit for 1982 and dismissing its appeal.

On June 22,1982, at a formal meeting of the Monroe City Council, plaintiff’s application for a Class E Alcoholic Beverage Permit was denied by the council. A Class E permit is for private clubs which are defined by the Monroe City Code. The advantage of being classified as a private club under the city ordinances is that such clubs are exempt from regularly established closing hours delineated in the city code. During that same meeting at a later time, the council reconsidered the matter of plaintiff’s application, withdrew its denial and appointed a study committee of one councilman and an assistant city attorney to further investigate the matter.

Thereafter, on July 13, 1982, plaintiff’s application again came before the council for consideration, and the application was denied. The report of the study committee was adopted and entered into the official record of the council as containing the reasons for the denial of the permit being sought.

Thereafter, pursuant to the provisions of La.R.S. 26:104, plaintiff appealed to the district court claiming that the action of the council was arbitrary, capricious, and discriminatory because the grounds on which the city had relied to withhold the permit were not in accordance with law and seeking to mandamus the council to grant and issue the requested permit in accordance with law. The city answered the appeal alleging additional reasons for the denial of the issuance of the permit as well as those reflected by the official minutes of the council meeting.

After hearing all of the evidence, the district court upheld the action of the city council in denying the permit but did so after finding that none of the reasons relied on by the council at the time of the meeting of July 13,1982, were valid reasons to deny the permit. The district court based its holding on its finding that one of the additional reasons filed by the council in its answer to plaintiff’s mandamus proceeding justified the action of the council.

It is from the judgment upholding the action of the Monroe City Council that plaintiff appeals. The judgment appealed from was signed on August 25, 1982. The appeal was lodged with this court on September 27, 1982, and the case was submitted without argument for consideration on our November docket.

Because of the particular posture in which this case is presented to us for review and the relief which the plaintiff is seeking, it is necessary that we initially determine before reviewing the merits of this appeal whether or not a judgment in plaintiff’s behalf would avail plaintiff of the relief which it seeks. Our review of the record reveals that plaintiff is only seeking to have us order the Monroe City Council to grant unto it a Class E liquor permit for the calendar year 1982. This is evidenced by the application for the license itself and by the provisions of the applicable ordinance. See Section 4-2, Monroe City Code. Under the provisions of the applicable ordinance, every retail and wholesale dealer in alcoholic beverages must obtain from the city an appropriate permit to conduct such business during each year in which such business is to be conducted. Therefore, on the date of this decision, the license being sought for the year 1982 would have expired by its own terms. All applications for renewal of such permits must be filed on the thirty-first day of October of the calendar year prior to the year for which the renewal is being sought and if the application for renewal is filed on or after January first of the year for which the permit is required, the application may be denied. The requirements for new or renewal permits are substantially the same. See Sections 4r-8, 4-9, and 4-13, Monroe City Code.

Because it is now 1983, any judgment of this court affording plaintiff any relief whatsoever would be ineffectual and would serve no useful purpose. Based on the record in the posture presented to us, no future rights of the plaintiff are contingent upon its having held a permit for 1982. Therefore, the issue presented to us for determination in this appeal has now become moot. It would serve no useful purpose whatsoever to determine whether plaintiff was entitled to a liquor permit for the year 1982, and any decree in the plaintiff’s favor could not be enforced.

We are aware of jurisprudence wherein the appellate court has chosen to address the issue of the propriety of the denial of a liquor permit even though the permit may have expired by law at the time of the hearing by the appellate court. See Breaux v. Town of Oberlin, 247 So.2d 195 (La.App. 3d Cir.1971). Ho.wever, we construe such review to be limited only to those cases where the plaintiff’s future rights to permits are dependent upon issues presented to the appellate court for review within the pending appeal. Such is not the case presented in the instant appeal. We have reviewed this record and find no overriding issue presented in this case which we could determine that would affect plaintiff’s future rights to a liquor permit should he comply with the requirements of the applicable ordinances. The only issue presented for our review is whether or not plaintiff should have been granted a liquor permit for 1982. Plaintiff does not contest the validity of the ordinance or ordinances in question and has not shown, nor do we find, that his right to a permit in the future is dependent upon the validity of any ordinances existing at the time his application was denied.

Spinato v. Lowe, 239 La. 604, 119 So.2d 480 (1960) and its progeny are clear authority for our holding. In Spinato, the court stated:

In the present case it would serve no useful purpose for this Court to determine whether the plaintiff should have been issued a liquor permit for the year 1959 for any decree which this Court would render, if we were to find merit in plaintiff’s contentions, would be unenforceable. This Court will not render judgments which cannot be made effective nor will we give opinions on moot questions or abstract propositions from which no practical results can follow. [Citations omitted.]

This result is further supported and controlled by our decisions in Unity Markets, Inc. v. Lenard, 316 So.2d 150 (La.App.2d Cir.1975) and Ice Service Corp. v. Town of Hodge, 174 So.2d 212 (La.App.2d Cir.1965).

Having determined that the issue presented by this appeal is moot, it is unnecessary that we consider the correctness of the district court’s ruling.

Accordingly, the appeal is dismissed at plaintiff’s cost.

APPEAL DISMISSED.


author: JASPER E. JONES, Judge.

text:
    R.B. MARDIS & Mrs. Stella Mardis, Plaintiffs-Appellees, and Tallulah Production Credit Association, Plaintiff-in-Intervention, Appellant, v. Thomas I. HOLLANGER, Jr. & Janet Hollanger, Defendants-Appellees, and Bank of Morehouse, Defendant-in-Intervention, Appellee.
    No. 15167-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 17, 1983.
    Writ Denied March 25, 1983.

      Voelker, Ragland, Brackin & Crigler by William B. Ragland, Jr., Lake Providence, for plaintiff-in-intervention, appellant.
    Rankin, Yeldell, Herring & Katz by Stephen J. Katz, Bastrop, for defendant-in-intervention, appellee.
    Farrar, Perry & Jefferson by Harvey Perry, Monroe, for defendants-appellees.
    Before JASPER E. JONES, FRED W. JONES, Jr. and SEXTON, JJ.
   JASPER E. JONES, Judge.

Tallulah Production Credit Association (PCA) appeals an adverse judgment in a rule to rank mortgages ancillary to this executory proceeding to enforce a first mortgage on property in Morehouse Parish, Louisiana. The rule was tried and judgment was rendered recognizing the mortgage held by the Bank of Morehouse as a second mortgage and the mortgage held by PCA as a third mortgage. We affirm.

The Facts

This case arises from the business dealings of Thomas Hollanger. Hollanger and several relatives, individually and through corporations, were engaged in extensive farming operations in north Louisiana and south Arkansas.

In early 1978 Hollanger and Hollanger and Bracewell Rice Farms, Inc., a corporation owned one-half by Mr. and Mrs. Hol-langer and one-half by Hollanger’s brother-in-law and his wife, were negotiating with Farmer’s and Merchant’s Bank (FMB) of Stuttgart, Arkansas, to arrange a crop loan. FMB required security before the loan could be made.

The Hollangers purchased a large tract of land in Morehouse Parish from Mr. and Mrs. R.B. Mardis on February 3,1978. Part of the price was given in the form of a note for $598,078 which was secured by a mortgage on the Mardis tract. This mortgage is acknowledged to be the first mortgage on the land.

Also on February 3, 1978, the Hollangers executed and endorsed a $300,000 demand note payable to “Ourselves.” This note is also secured by a collateral mortgage on the Mardis tract. This mortgage was recorded on February 3,1978, shortly after the mortgage securing the Mardis note. We will hereinafter refer to the $300,000 demand note as the “mortgage note.”

On February 4,1978, Hollanger delivered the mortgage note and a certified copy of the collateral mortgage to FMB. This note was given to secure both individual and corporate loans then existing or to be advanced in the future. That day Hollanger acting for the corporation borrowed from FMB $45,000 represented by a note payable on or before February 20, 1978.

On March 1,1978, Hollanger, acting individually and for the corporation executed a note, payable to FMB, in the amount of $450,000. This note represented the crop loan and the consolidation of the existing corporation loan of February 4, 1977.

On April 24, 1978, the Hollangers transferred the Mardis tract to Hollanger and Bracewell Rice Farms, Inc. On December 4, 1978, Hollanger, individually and for the corporation, executed a note in the amount of $540,000 payable to FMB. This note was a renewal of the March 1 note.

Hollanger and Bracewell Rice Farms, Inc., through its president, Thomas Hollan-ger, executed and endorsed a demand note in the amount of $1,500,000 on April 16, 1979. This note was secured by a collateral mortgage covering the Mardis tract executed that day. Hollanger, as corporate representative, also executed a written agreement pledging the $1,500,000 note to PCA to secure existing and future loans.

In late 1979 or early 1980 intra-family friction developed over the business operations. A division of assets was arranged and the Hollangers emerged with total ownership of Hollanger and Bracewell Rice Farms, Inc.

Following the corporate changes, Hollan-ger was unable to meet his and the corporation’s obligations to FMB. FMB then refused to renew the December 4, 1978, note. Hollanger arranged alternate financing through the Bank of Morehouse which agreed to buy Hollanger’s loan from FMB.

On February 22, 1980, Hollanger and his attorney, Harvey Perry, went to Stuttgart. Hollanger, acting for the corporation, executed a note for $304,187.50 representing the balance remaining on the December 4, 1978, note.

Perry and a vice-president of FMB executed a trust agreement under which Perry was made an “escrow agent” for the delivery of certain items, including the note for $304,187.50, and the mortgage note to the Bank of Morehouse.

Perry took the items to Bastrop, Louisiana, and delivered them to the Bank of Morehouse which electronically transferred payment of the price to FMB.

On March 23, 1980, Hollanger, acting for the corporation, executed a note in the amount of $300,000 payable to the Bank of Morehouse. This note represented a renewal of the February 22, 1980, note purchased from FMB.

Mr. and Mrs. Mardis commenced this ex-ecutory proceeding to enforce their mortgage on May 2, 1980.

PCA filed this rule on May 5, 1982, contending that its mortgage is second only to the mortgage held by the vendor’s and superior to the mortgage the Bank of More-house holds which it obtained from FMB. After the rule was tried the district judge rendered the judgment complained of and PCA appealed.

PCA sets out four assignments of error. It contends that the trial judge erred in finding that:

1) the collateral mortgage note was pledged to FMB;
2) the collateral mortgage note was pledged to secure the FMB hand note executed on February 22, 1980, and the collateral mortgage retained its rank after the hand note was transferred by FMB to the Bank of Morehouse;
3) no reissue or repledge of the collateral mortgage note was required after the hand note was acquired by the Bank of Morehouse; and
4) no novation of the debt occurred when the new hand note was issued on March 23, 1980 to the Bank of Morehouse.

Assignment # 1

Through this assignment of error appellant contends that the mortgage note was never pledged because of the failure of the parties to comply with the requirements of C.C. art. 3158 as stated in New Orleans Silversmiths v. Toups, 261 So.2d 252 (La. App. 4th Cir.1972), writ refused, 262 La. 309, 263 So.2d 47 (1972).

In Toups the court listed four requirements for retrospective ranking under LSA-C.C. art. 3158:

1) a valid initial pledge;
2) each succeeding loan specifically secured by the pledge;
3) agreement at the time of the original pledge that it would secure existing and future obligations; and
4) the pledged instrument must remain in the hands of the pledgee.

Appellant first contends that there was no valid pledge and, therefore, the first requirement is lacking.

The only formality required for the pledge of a negotiable note is delivery. American Bank & Trust Company v. Straughn, 248 So.2d 73 (La.App. 1st Cir. 1971), writ denied, 259 La. 746, 252 So.2d 450 (1971); Baker Bank & Trust Company v. Behrnes, 217 So.2d 461 (La.App. 1st Cir. 1968); Acadiana Bank v. Foreman, 343 So.2d 1138 (La.App. 3d Cir.1977); affirmed, 352 So.2d 674 (La.1977). However, for there to be a pledge the formality of delivery must be coupled with an agreement that the note stands as security for existing or future debts. People’s Bank & Trust Co. v. Campbell, 374 So.2d 741 (La.App. 3d Cir. 1979), writ refused, 376 So.2d 1268 (La.1979).

The mortgage note and a certified copy of the collateral mortgage were delivered to FMB on February 4, 1978, by Hol-langer. Thus, the formality of delivery is present. Appellant strenuously argues that there is no pledge because there was no agreement to pledge. This argument is not founded upon the evidence.

At the trial of the rule Thomas Hollanger testified as follows:

Q. I believe you basically testified, Mr. Hollanger, the reason this collateral mortgage dated February 3, 1978, was prepared was a requirement of the Farmers and Merchants Bank?
A. That’s true.
Q. And as I understand your testimony, they stated they would have to have a mortgage on your farm, the Mardis Tract, before they would loan you money for your crop loan, is that correct?
A. Correct.
Q. When you took — uh did you take that collateral mortgage note to the Farmers and Merchants Bank on February 4, 1978?
A. Yes.
Q. And from that time until today has that collateral mortgage note gotten into your hands?
A. No.
Q. Who did you pledge that note for? A. Myself and the corporation.
Q. Was that crop loan that you received as a result of pledging that note was it ever paid off?
A. No.
Q. The balance ... was the balance the lowest balance was that which the Bank of Morehouse purchased, is that correct? A. That’s correct.
Q. During that period of time, was that mortgage note ... did that mortgage note remain in the hands of the Farmers and Merchants Bank as security for that loan?
A. It did.
Q. Was that — uh note to secure any other advances by the Farmers and Merchants Bank?
A. Any future advances or past money I had borrowed. [Rec. 583-4.]

The FMB official Hollanger dealt with was deceased at the time of trial. Mr. Carl Gunner, executive vice-president of FMB, testified at trial.

Gunner testified that he was familiar with the lending practices of FMB and that loans of the amount involved here would not have been made without a mortgage on immovable property as security. He further testified that the only reason FMB would have had the mortgage note was as security for the various hand notes.

The testimony of Hollanger and Gunner shows that it was the parties’ intent and agreement that the mortgage note, and through it the collateral mortgage, secure both existing and future loans. There was a valid initial pledge and the first requirement of Toups is met.

Appellant also argues that the second requirement of Toups is lacking because the succeeding hand notes were not secured by a pledge of the mortgage note.

With respect to the mortgage note the collateral mortgage provides: “The note may be issued and pledged by MORTGAGOR ... to secure loans and advances made or to be made...” The record shows that the Hollangers and FMB had agreed that the pledge of the mortgage note would secure both existing and future personal and corporate debts.

When the pledge agreement specifically provides that the pledge is to secure existing and future debts the second requirement of Toups is met. Tallulah Production Credit Ass’n v. Turner, 391 So.2d 885 (La. App. 2d Cir.1980), writ refused, 396 So.2d 900 (La.1981). As the agreement between the Hollangers and FMB provides that the pledge is to secure both existing and future debts the second requirement of Toups is met.

This assignment of error is without merit. Assignment # 3

Through this assignment of error appellant contends that the fourth requirement of Toups, that the pledged instrument remain continuously in the hands of the pledgee, is lacking. Appellant bases this contention on the fact that the mortgage note was transferred to the Bank of More-house when it purchased the February 22, 1980, note from FMB. Appellant concludes that this transfer required a repledge of the mortgage note and that the collateral mortgage can rank only from the date it was repledged.

The thing the Bank of Morehouse bought from FMB was a debt represented by the February 22, 1980 note. That note was secured by a pledge of the mortgage note and through it by the collateral mortgage.

The pledge is an accessory of the primary obligation. LSA-C.C. art. 1771; Franklin v. Bridges Loan & Inv. Co., Inc., supra. The sale of an obligation includes its accessories. LSA-C.C. art. 2645.

The transfer of a hand note also transfers the collateral mortgage note pledged to secure it. In re Elliott, 385 F.Supp. 1194 (M.D.La.1974); Smith v. Shippers’ Oil Co., 120 La. 640, 45 So. 533 (1908); Richey v. Venture Oil & Gas Corp., 346 So.2d 875 (La.App. 4th Cir.1977).

In Smith, the supreme court stated the rule that a pledgee cannot sell the thing pledged except to satisfy the debt for which it was pledged. However, the court also recognized that the pledgee could sell the note representing the primary debt and transfer the pledged securities to the purchaser as security for the sold note.

Appellant seems to obliquely contend that the pledge was extinguished because the mortgage note was returned to the pledgor. However, the facts do not bear out this assertion.

The mortgage note was never in the physical possession of the pledgee after February 4, 1978. It was given to Mr. Perry by FMB only after he executed a trust agreement providing that he was an escrow agent for the delivery of this note and other documents to the Bank of More-house. Under these circumstances the note was never even in the constructive possession of Hollanger.

The fourth requirement of Toups was fulfilled. This assignment of error is without merit.

Assignment # 2

Through this assignment of error PCA contends that the mortgage note was not validly pledged until February 22,1980, and therefore, the collateral mortgage is outranked by its mortgage which ranks from April 16, 1979.

A collateral mortgage ranks from the date the mortgage note is pledged. Wallace v. Fidelity National Bank, 219 So.2d 342 (La.App. 1st Cir.1969), writ refused, 253 La. 1083, 221 So.2d 517 (1969); Installment Plan, Inc. v. Justice, 209 So.2d 68 (La.App. 4th Cir.1968); Rex Finance Company v. Cary, 145 So.2d 672 (La.App. 4th Cir.1962), affirmed, 244 La. 675, 154 So.2d 360 (1963); First Guaranty Bank v. Alford, supra.

The merit of this assignment depends on the date on which the mortgage note was pledged. If it was prior to April 16, 1979, this assignment is without merit.

For the reasons previously discussed with respect to Assignments 1 and 3 the mortgage note was pledged on February 4,1978, and the collateral mortgage ranks from that date. This assignment is without merit.

Assignment # 4

Through this assignment appellant contends that a novation occurred when the March 23, 1980, note was executed to replace the February 22, 1980, note and that, therefore, a repledge of the security was required.

The linchpin of this contention is whether a novation occurred.

Novation requires the specific intent to do so and cannot be presumed. LSA-C.C. art. 2190; Acadiana Bank v. Foreman, supra; Sterlington Bank v. Terzia Lumber & Hardware, Inc., 146 So.2d 233 (La.App. 2d Cir.1962). The intent to novate the debt must clearly result from the agreement or acts of the parties. Sterlington Bank.

There is no indication in the record that the parties desired or intended to effect a novation. Instead it appears that all they desired to do was to issue a new note representing the amount owed on the existing debt. The new note in the amount of $300,-000 reflects that the balance of the debt had been slightly reduced by a partial payment.

Taking a new note in partial renewal of an old one upon which a payment is madé does not operate as a novation, or extinguishment, of the original debt or the pledge securing it. Davis v. Welch, 128 La. 785, 55 So. 372 (1911); Smith, Howard & McCoy, Inc. v. Acme General Con. Inc., 152 So.2d 596 (La.App. 2d Cir.1963), writ refused, 244 La. 663, 153 So.2d 881 (1963); Beasley v. Martin, 253 So.2d 801 (La.App. 2d Cir.1971).

This assignment of error is without merit.

For the foregoing reasons the judgment is affirmed at appellant’s costs.

      . The corporate name was subsequently changed to Hollanger Rice Farms, Inc.

      . Appellant’s reliance on Franklin v. Bridges Loan & Inv. Co., Inc., 371 So.2d 294 (La.App. 2d Cir.1979), for the proposition that there was no pledge is misplaced. There no debt ever came into being and the court held that because of the accessorial nature of pledge there could be no pledge when there was never a debt for it to secure. In this case a debt was created on the day of the pledge and a debt has constantly been in existence since that time.

      . Durham v. First Guaranty Bank of Hammond, 331 So.2d 563 (La.App. 1st Cir.1976), writ refused, 334 So.2d 431 (La.1976), and First Guaranty Bank v. Afford, 366 So.2d 1299 (La.1978), relied on by appellant are inapposite.
      In Durham, the hand note and collateral mortgage note contained no reference to each other and the debtor denied any intent to secure the hand note with the mortgage note. Here, though some of the hand notes do not refer to the mortgage note, the debtor testified that the mortgage note was intended to secure those notes.
      In Alford, it was held that a pledged note secured no notes other than the single note designated in the pledge agreement. In the instant case it was agreed that the mortgage note would secure both existing and future debts not only one note as in Alford.

      .LSA-C.C. art. 1771:
      A principal contract is one entered into by both parties, on their own accounts, or in the several qualities they assume. An accessory contract is made for assuring the performance of a prior contract, either by the same parties or by others; such as a suretyship, mortgage and pledge.

      . LSA-C.C. art. 2645:
      The sale or transfer of a credit includes every thing which is an accessory to the same; as suretyship, privileges and mortgages.

      . We also note that the third requirement of Toups is met as the parties had agreed at the time of the original pledge that it would secure existing and future debts.

      .LSA-C.C. art. 2190:
      Novation can be made only by persons capable of contracting it; it is not presumed; as the intention to make it must clearly result from the terms of the agreement, or by a full discharge of the original debt.


author: SEXTON, Judge.

text:
    James Fred PRICE and Delores Stanley Price, Plaintiffs-Appellants/Appellees, v. HUEY CHILDS BUILDER, INC., Defendant-Appellant/Appellee.
    No. 15169-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 17, 1983.
    Rehearing Denied Feb. 24, 1983.
    Frederic L. Miller, Shreveport, for plaintiffs-appellants/appellees.
    Hiller & Weinstein by Richard Hiller, Shreveport, Campbell, Campbell & Johnson by John C. Campbell, Minden, for defendant-appellant/appellee.
    Before JASPER E. JONES, FRED W. JONES, Jr., and SEXTON, JJ.
   SEXTON, Judge.

The purchasers of a new home instituted an action against the builder of the home for defective workmanship in the construction of the house. The trial court granted the plaintiff-purchasers recovery against the defendant-contractor for some of the damages sought by plaintiffs, and both plaintiffs and defendant have challenged the trial court’s findings, perfecting the instant appeal. We amend, awarding plaintiffs certain additional sums, and as amended, affirm.

The parties to this appeal are plaintiff-appellants James Fred Price and his wife Delores, and defendant-appellant Huey Childs Builder, Inc., a Louisiana-based construction company owned and operated by Huey Childs.

Mr. Childs began constructing the brick home which is the subject of this appeal in August of 1979. There was no contract for the sale of the house at the inception of its construction, as Mr. Childs was building the home on a speculative basis. The house was in an unfinished state — with only a foundation and a wooden frame — when in September of 1979 James Price first developed an interest in purchasing it.

On December 13, with the house still in an unfinished state, plaintiff Price entered into a purchase agreement with defendant Childs to buy the house for the price of $90,800.00. The written purchase agreement was supplemented by detailed building specifications prepared by a civil engineer and acceded to and signed by Huey Childs. Mr. Childs orally agreed to complete the construction of the house for the Prices according to these specifications. In February of 1980, when the house was nearing completion but still under construction, Price and Childs orally agreed that certain specified modifications of the original plan would be implemented in order to make the house more suitable to its future owners, the Prices. This verbal agreement was never reduced to writing.

Price and Childs “closed” the sale of the newly constructed home on May 12, 1980, and jointly executed a cash sale deed which transferred the ownership of the new home to the Prices at a cost of $90,800.00. Both parties agreed, upon the trial, that at the time of the sale there was a clear understanding that Mr. Childs would implement certain improvements, repairs and refinements which were still needed in order to achieve the written building specifications. Upon the recommendation of a civil engineer retained by him, Childs returned, subsequent to closing of the sale, to underpin and stabilize the foundation beneath one wall of the newly purchased home. Mr. Childs failed to implement other needed improvements.

On March 30, 1981, the Prices brought suit against Childs, alleging that their new home was built on very expansive soils with a high plasticity index, and that the soils severely contracted and swelled in times of dry and wet weather. Plaintiffs contend that Childs did not respond to the condition of the soils with adequate soil testing, soil compaction or site preparation, and that he did not utilize sound construction techniques in building the foundation. As a result of these errors in construction, plaintiffs allege that cracks have developed in the interior and exterior walls of their house and in its concrete foundation, and that “parts of the house have separated.”

In addition to the structural defects formally alleged by petition, plaintiffs presented demands for other items of damages, amending their pleadings through the introduction of unobjeeted-to-testimony. See LSA-C.C.P. Art. 1154. These other items of damage consist more particularly of the following deficiencies: defendant installed a small wet bar sink instead of a laundry tub as was called for by building specifications; defendant failed to furnish a mirror in the half bath; defendant installed bi-fold doors in the wet bar in an improper fashion; defendant placed mis-matched knobs and hardware on French doors; the commode installed was of the wrong color and its lid will not stay up; defendant failed to install trim-base mold and cove molding; defendant failed to replace and furnish hardware to several doors; and defendant neglected to install sheetrock in the den. Plaintiffs also presented demands for attorneys’ fees and the reconstruction of a poorly erected chimney.

The trial court utilized a redhibition analysis in evaluating plaintiffs’ claims and accordingly dismissed those demands which were predicated upon defects that were apparent at the time of the sale. See LSA-C.C. Art. 2521. Pursuant to this statutory criteria, the trial court awarded plaintiffs $8,800.00 for the stabilization and underpinning of the house’s foundation, as well as $447.50 in expert fees, and denied recovery for the remainder of plaintiffs’ claims. The plaintiffs have appealed, assigning as error the court’s failure to award recovery for other items of damages. The defendant has also appealed, challenging the trial court’s decree that it is in anyway liable to the plaintiffs.

There can be little doubt, upon a careful examination of the record, that there is substance to plaintiffs’ allegations that the performance of defendant Huey Childs in constructing plaintiffs’ house was substandard. The crux of our task is to determine the availability of various statutory remedies, which are contingent upon the nature of plaintiffs’ cause of action. The nature of plaintiffs’ cause of action, in turn, is contingent upon our characterization of the contract by which the parties were mutually bound.

If the contract between the parties is characterized as a contract of sale, imposing upon defendant an obligation to give, plaintiffs’ proper cause of action is in redhibition for vices in the thing sold. See LSA-C.C. Arts. 2520-2548. If the cause of action sounds in redhibition, furthermore, plaintiffs’ remedies, as a vendee, are an avoidance of the sale and a return of the purchase price, LSA-C.C. Art. 2520, a repair of the purchased item by the vendor, LSA-C.C. Art. 2531, or a reduction of the purchase price. LSA-C.C. Arts. 2541-2544. A plaintiff in a redhibitory action may also obtain attorneys’ fees and damages as legal remedies in cases where the seller knows— and fails to declare — the vices of the thing he sells. LSA-C.C. Art. 2545. A plaintiff’s remedies in redhibition, moreover, are subject to important limitations which are characteristic of all actions in redhibition: in order to constitute the basis for a valid cause of action, the vice or defect complained of must be non-apparent, undeclared by the seller, and present at the time of the sale. LSA-C.C. Arts. 2521, 2522, 2530.

If, on the other hand, the contract between the parties is characterized as a construction contract or a sale of services, imposing upon defendant an obligation to do, then different legal consequences result. “On the breach of any obligation to do, ... the obligee is entitled either to damages, or, in cases which permit it, to a specific performance of the contract, ... or he may require the dissolution of the contract ....” LSA-C.C. Art. 1926. The Civil Code provides more specifically, with reference to construction contracts, that “If an undertaker fails to do the work he has contracted to do, or if he does not execute it in the manner and at the time he has agreed to do it, he shall be liable in damages for the losses that may ensue from his non-compliance with his contract.” LSA-C.C. Art. 2769.

We also acknowledge that as an alternative to strictly characterizing a contract as either a contract of sale or as a construction contract, a court might choose to characterize a given contract as a contractual hybrid. Thus such a contract could be characterized as a commixture which combines elements of a contract of sale — which imposes upon the obligor an obligation to give, with elements of a construction contract — which imposes upon the obligor an obligation to do. In such a case, a court could potentially fashion a sui generis combination of statutory rights, coupling redhibition and breach of contract remedies, much as was done in Phillippe v. Browning Arms Company, 395 So.2d 310 (La.1980), wherein the Supreme Court coupled tort and redhibition remedies in compensating a plaintiff damaged by injuries arising from a single set of factual circumstances.

Lastly, a court could conceivably find that two self-subsistent contracts — a contract of sale and a construction contract— simultaneously regulate the relations of the parties. In such a case, a court could simultaneously award the remedies peculiar to each of the co-existing contracts, while observing the tenet that a plaintiff is not to be compensated twice for any given item of damage.

The dilemma of characterization, in the context of sales and construction contracts, is one which has long troubled and beguiled civilian jurists and the Louisiana courts. See S. Litvinoff, Louisiana Civil Law Treatise — Obligations, Book 2 §§ 157, 158 (1975); Levasseur, Sales, The Work of the Louisiana Appellate Courts for the 1977-1978 Term, 39 La.L.Rev. 705 (1979); Note, When is a Sale a Sale? 32 La.L.Rev. 446 (1972). “The problem of differentiating sales and construction contracts ... is a recurring one in the jurisprudence, and the answers given seldom lend themselves to uniformity. Although the Civil Code clearly contemplates the distinction between these types of contracts, it defines the contract of sale only in the most general terms. Thus, the problem of categorizing a particular transaction has generally been left to the courts.” 32 La.L.Rev., supra, at 446-447.

The judiciary has postulated several tests for determining whether a given contract is more appropriately characterized as a contract of sale, or a construction contract. The principle among these is the traditional “value test” in which the court determines whether the labor expended in constructing the item, or the materials incorporated therein, constitute “the principal value of the contract.” 32 La.L.Rev., supra, at 449. Under such an economic evaluation, the contract is deemed to be a construction contract where the value of the builder’s labor comprises the essential value of the contract, and a contract of sale where the value of physical materials forms the major element of the contract’s value. Other tests formulated by the courts in characterizing contracts revolve around the intent of the parties. The basic question under this test is which component of the contract— the services or the materials — was envisioned by the parties as the principal element and which was thought of as merely an accessory element. 32 La.L.Rev., supra, at 449-52.

We readily acknowledge that under the traditional value test, the contract between Price and Childs should be characterized as a sales contract, since the principal element of value in that contract is undoubtedly not labor, but materials. We furthermore observe that the civilian jurists have historically adopted the position that where the builder — as opposed to the purchaser — furnishes the construction materials, the contract is one of sale. 39 La.L.Rev., supra, at 711. However, in faithful observance of our civilian heritage, we consider first not the jurisprudence or doctrinal writings, but the Civil Code itself, recognizing, as we do, that the “Law is a solemn expression of legislative will.” LSA-C.C. Art. 1.

We believe that our problem is directly addressed by Book III, Title IX, Chapter 3, Section 3 of the Civil Code, Articles 2756-2777. Title IX of Book III concerns contracts “Of Lease.” Chapter 3 of Title IX concerns, more specifically, contracts “Of the Letting Out of Labor or Industry.” The even narrower focus of Section 3, Articles 2756-2777, is contracts “Of Constructing Buildings According to Plots, and Other Works by the Job, and of Furnishing Materials.” It appears, from this scheme of classification and from the location of these articles in the code, that the redactors of the Civil Code envisioned that the construction of “buildings according to plots” is a construction rather than a sales contract— or in civilian terminology a lease of labor or industry.

The first article of Section 3 defines and articulates the scope and applicability of the section:

“To build by a plot, or to work by the job, is to undertake a building or a work for a certain stipulated price.” LSA-C.C. Art. 2756.

Article 2757 further clarifies the applicability of Section 3, stating that “A person, who undertakes to make a work, may agree, either to furnish his work and industry alone, or to furnish also the materials necessary for such a work.”

Having established that Section 3 governs contracts in which one party undertakes to construct a building for a specified price and furnishes either his work alone or both his labor and the necessary materials, the Civil Code delineates the legal consequences of this type of construction contract. More importantly, for our purposes, Section 3 specifically stipulates the appropriate remedy for the breach of a construction contract. As Article 2769 provides:

“If an undertaker fails to do the work he has contracted to do, or if he does not execute it in the manner and at the time he has agreed to do it, he shall be liable in damages for the losses that may ensue from his non-compliance with his contract.” (emphasis added).

The stipulated remedy, as provided by Articles 2769 and 2762, is not redhibition but contractual damages — the amount of the loss incurred by the obligee as a result of the obligor’s non-performance. Therefore redhibitory rules — including the rule precluding recovery for an apparent defect — are inapplicable here and the more general rules regarding the assessment of actual damages are instead operative.

We note parenthetically, however, that our decision to employ a “damages” rather than a “redhibition" analysis in determining recovery, runs counter to at least one scholar’s conception of the intent of the French legislators who drafted the Napoleanic precursor of Article 2757. As Professor Le-vasseur has astutely observed:

“The contradiction arising from the juxtaposition of the two articles of the French Civil Code would not have come into being had the Tribunat ratified the draft of the projet of article 1787 as it was presented. This draft included two additional sentences as follows:
A person who undertakes to make a work, may agree, either to furnish his-work and industry alone, or to furnish also the materials necessary for such a work.
In the first situation we have a pure hiring of industry. In the second, it is the sale of a thing when it is made.
After some discussion in the Tribunat, the decision was made to drop ‘the last two subparagraphs of this article, as being of pure doctrine and as not having the nature of a legislative provision.’
It can be said, then, that the intent of the drafters of the French Civil Code was to consider a contract as a sale whenever the person who furnished his industry also furnished the materials for the work. A contract is a locatio operis, on the other hand, when the proprietor furnishes the materials to the person who is to furnish only his industry. Such was the opinion of the Romans, the great majority of the commentators, and the international law of the sale of corporeal movables.” (emphasis original, footnotes omitted). 39 La.L.Rev., supra, at 710-11.

However, we decline to subordinate the clear language of the Louisiana Code to the uncodified intent of the jurists who fashioned the French pre-cursor of Article 2757. This stance is mandated by our own Civil Code which provides that “Law is a solemn expression of legislative will,” that “When a law is clear and free from all ambiguity, the letter of it is not to be disregarded, under the pretext of pursuing its spirit,” and that the “cause which induced the Legislature to enact” a law is only to be considered where “its expressions are dubious.” LSA-C.C. Arts. 1,13,18. The guiding principle, in short, is that the extant statutory language governs.

Articles 2756-2777 set out the rules for construction contracts in which the obligation to build is undertaken for a certain price. The Code expressly envisions that in these construction contracts, the builder may or may not undertake to provide his own materials. But the Code does not differentiate between the consequences applicable when a builder furnishes his own materials, and the consequences applicable when a builder does not furnish his own materials. Article 2769 expressly delineates the remedy for a breach of this particular type of construction contract, and this statute does not predicate the availability of remedies upon the contingency of whether the contractor does or does not supply his own materials.

The Louisiana redactors did not desire to establish such a differentiation in remedies. In the absence of their attempt to make such a differentiation, we are not empowered, as a court, to supply such a differentiation.

The record clearly establishes that the defendant assumed an obligation to do which was the undertaking of “a building or a work for a certain stipulated price.” LSA-C.C. Art. 2756. His obligation therefore satisfied the Civil Code’s statutory definition of a contract to build “by a plot” or “by the job,” and is accordingly governed by the codal rules germane to such contracts.

Our conclusion that this was a building contract, governed by LSA-C.C. Arts. 2756-2777, is not undermined by the fact that defendant and the Prices were party to both a purchase agreement and a cash sale deed. The denomination of these documents is not in and of itself dispositive in characterizing the contractual relations between the defendant and the Prices, and does not compel the conclusion that a contract of sale — rather than a construction contract — was operative here.

In our view, defendant entered into a verbal contract with the Prices to construct a house for $90,800.00 according to certain oral modifications and precise written specifications. This pre-existent obligation was clearly, in functional terms, a valid obligation to do: the codal requisites for the formation of a valid contract — cause, object, consent and capacity — were satisfied, LSA-C.C. Art. 1779, and there is no codal requirement that obligations to do be reduced to writing.

Thus, defendant had an obligation, expressed in a verbal agreement. This construction contract was perfected before the execution of the written contract of sale transferred ownership of the house. We see no reason to ignore the rights incidental to the pre-existent obligation to do, merely because this first contractual obligation was followed by a subsequent obligation “to give” or transfer ownership. The defendant’s obligation to transfer ownership of the house consummated — but did not super-cede — his obligation to build it according to agreed upon specifications.

Since the contract which is operative here is a construction contract, Articles 2769 and 2762 mandate that a damages rather than a redhibition analysis is appropriate in assessing recovery. Because a redhibition analysis is inapplicable, the redhibition rule limiting recovery to nonapparent defects is equally inapplicable. We therefore amend the trial court’s award to reflect our holding that the instant plaintiffs are not limited to redhibitory remedies and may thus recover for apparent defects. The proper standard of recovery in these instances, as the courts have historically insisted, is the amount necessary to finish or rectify the work which the builder has imperfectly or only partially completed. LSA-C.C. Arts. 2762, 2769; Hayden v. Soule, 271 So.2d 264 (La.App. 4th Cir.1972); Poche v. Landry, 57 So.2d 808 (Orl.La.App.1952); Esposito v. D’Assaro, 49 So.2d 356 (Orl.La.App.1950); Canulette & Son v. Clesi, 39 So.2d 853 (Orl. La.App.1949); Polizzi v. Thibodeaux, 35 So.2d 660 (Orl.La.App.1948); Brandin Slate Co. v. Bannister, 30 So.2d 877 (Orl.La.App.1947); Lillis v. Anderson, 21 So.2d 389 (Orl.La.App.1945); Merrill v. Harang, 198 So. 386 (La.App. 1st Cir.1940); Cary v. Brown, 196 So. 579 (Orl.La.App.1940); Reimann Construction Co. v. Upton, 178 So. 528 (Orl.La.App.1938).

We thus affirm the trial court’s award of $8,800.00 for foundation stabilization and underpinning and $447.50 for expert fees. We also reinstate several claims which were rejected by the trial court. In accord with the jurisprudence and Articles 2762 and 2769, we assess the value of these claims for defective workmanship according to the cost which will be required to rectify and complete each imperfectly constructed household component. The testimony establishes that the following reconstruction costs will be necessitated by defendant’s defective and incomplete workmanship and his failure to satisfy building specifications: reconstruction of a fireplace which is askew and aslant, supported by a wooden frame, and the bricks of which are coming loose due to disintegrating mortar — $12,803.00; installation of a laundry tub — $353.00; installation of a mirror in the half bath— $125.00; installation of bi-fold doors in the wet bar — $563.00; refitting and adjusting French doors — $275.00; installing the specified hardware on the French doors— $221.00; replacement of improperly installed commode — $180.00; installation of cove and base mold in the kitchen and laundry room — $451.00; reinstallation, caulking and refinishing of front door — $375.00; installation of missing sheetrock in den and replacement on panelling — $2,245.00. Reinstating these claims of plaintiffs which were rejected at the trial level, and adding them to the sums which were properly awarded, we find that defendant is indebted to the Prices in the amount of $26,838.50, which represents the costs that will be incurred in perfecting defendant’s work and satisfying construction specifications.

We hold that where a builder undertakes by contract to construct a house for an obligee at a certain stipulated price, and later transfers the edifice he has agreed to construct by a contract of sale, the appropriate remedy is as per. Articles 2756-2777 for the costs of rectifying all defects, omissions and deficiencies, rather than in redhi-bition.

Therefore the judgment of the trial court is amended and judgment is hereby rendered in favor of plaintiffs and against the defendant in the amount of $26,838.50, together with appropriate legal interest thereon, and for all costs of this litigation.

AMENDED, AFFIRMED AND RENDERED.

      . Insofar as the obligations of contracts extend to whatsoever is incidental to such contracts, “the party who violates them, is liable, as one of the incidents of his obligations, to the payment of the damages, which the other party has sustained by his default.” LSA-C.C. Art. 1930. Where the object of a contract is “any thing but the payment of money, the damages due to the creditor for its breach are the amount of the loss he has sustained, and the profit of which he has been deprived LSA-C.C. Art. 1934.

      . See Levasseur, Sales, The Work of the Louisiana Appellate Courts for the 1977-1978 Term, 39 La.L.Rev. 705, 709 (1979).

      . See 39 La.L.Rev., supra, at 709.

      . LSA-C.C. Art. 2762 provides that:
      “If a building, which an architect or other workman has undertaken to make by the job, should fall to ruin either in whole or in part, on account of the badness of the workmanship, the architect or undertaker shall bear the loss if the building falls to ruin in the course of ten years, if it be a stone or brick building, and of five years if it be in wood or with frames filled with bricks.”

      . LSA-C.C. Art. 2757 provides that:
      “A person, who undertakes to make a work, may agree, either to furnish his work and industry alone, or to furnish also the materials necessary for such a work.”


author: BOWLING, Justice, for the Court:

text:
    Arlean JACKSON v. STATE of Mississippi.
    No. 53573.
    Supreme Court of Mississippi.
    Jan. 26, 1983.
    Roach, McMillan, Welch & Ott, John H. Ott, McComb, for appellant.
    Bill Allain, Atty. Gen. by Wayne Snuggs, Asst. Atty. Gen., Jackson, for appellee.
    Before BROOM, BOWLING and HAWKINS, JJ.
   BOWLING, Justice, for the Court:

Appellant was indicted, tried and convicted in the Circuit Court of Pike County for the crime of murder. She received a sentence of life in the custody of the Mississippi Department of Corrections. On appeal, appellant assigns the following alleged errors:

I. THE LOWER COURT ERRED IN ADMITTING TESTIMONY CONCERNING AN INCRIMINATING WRITTEN STATEMENT MADE BY APPELLANT WHEN THE SAME WRITTEN STATEMENT HAD NOT -BEEN FURNISHED TO DEFENSE COUNSEL IN ACCORDANCE WITH THE DISCOVERY REQUEST MADE THEREFOR PRIOR TO THE TRIAL.
II. THE LOWER COURT ERRED IN NOT ADMITTING SUFFICIENT TESTIMONY CONCERNING PRIOR CONVICTIONS AND PRIOR ACTS OF VIOLENCE BY THE DECEASED TOWARDS DEFENDANT.
III. THE LOWER COURT ERRED IN THAT THE VERDICT WAS CONTRARY TO THE OVERWHELMING WEIGHT OF THE EVIDENCE ON THE ISSUE AS TO WHETHER OR NOT THE APPELLANT, ARLEAN JACKSON, ACTED IN SELF-DEFENSE.

On March 14,1981, at approximately 4:00 p.m., one Sedrew Brock died from a bullet wound to the head that had been fired from a gun held by appellant, Arlean Jackson. The shooting occurred in front of a well-known and well-patronized country store. There were a number of witnesses. Although, as is usually the case, the testimony of these witnesses was contradictory, the essential evidence was largely undisputed.

Appellant was twenty-one years of age. For approximately one and a half years prior to August 1980, she and Sedrew Brock had lived together, although each had a spouse the entire time. A child was bom to this adulterous relationship. Undisputedly, the lovers had a rather stormy liaison. This continued from their breakup in August 1980 until the shooting on March 14, 1981. On a number of occasions appellant filed complaints with Justice Court Justices as a result of alleged assaults by the deceased. Most of these complaints resulted in convictions, but never any penalty more than a fine.

On the day of Mr. Brock’s death, he, his father-in-law, and another male witness were in front of the store talking when appellant, her sister Imogene Nelson, and several small children drove up to the store for the purpose of purchasing groceries. Only appellant went into the store. It is admitted by the witnesses that after appellant went into the store, Brock used a form of profanity and followed her into the building. He was in the building only a few minutes and came out still admittedly using profane words directed toward appellant. Appellant then came out of the store and was obviously upset, evidenced by crying.

We now discuss the evidence of appellant material to the issues before us. She testified that while she was in the back of the store, Brock came up to her using profanity, put both his hands around her throat and started choking her. She was able to get him to stop as persons were in various parts of the store. [Another eye-witness shopping nearby verified appellant’s evidence of being choked.] Appellant testified that she had been so harassed by Brock that she had to scare him in some form to make him leave her alone. Also parked outside the store was a van owned by appellant’s cousin. Appellant testified she knew he kept a pistol in the console of the van. Knowing this, she secured the pistol, although she was unfamiliar with operating firearms. Holding the pistol with both hands with the barrel of the pistol pointing toward the ground, she then approached Brock and the other two men standing by the pickup of Brock. She stated that she was crying and upset and told Brock to leave her alone from then on. According to her and the other witnesses, Brock started walking toward appellant with his right hand in his right pants’ pocket. Appellant told him to come no further, but he continued. Indisputably, appellant then fired the pistol over the head of the deceased. He kept coming and according to appellant she started pulling the trigger as fast as she could. One bullet struck Brock in the head, killing him instantly. The appellant testified that at all times during the year and a half she and Brock were living together, he carried a pistol on his person.

Appellant was indicted on March 18,1981, and the case was set for March 25. At the request of the court-appointed attorney for appellant, the trial was reset for April 5, 1981. On March 23, appellant’s attorney filed a request for discovery under the terms of Rule 4.06 of the Mississippi Uniform Criminal Rules of Circuit Court Practice. No confession or any other type of statement by appellant, either written or transcribed, was furnished appellant’s attorney by the state.

At the trial the state first introduced witness Bruce Fairburn, a Pike County Deputy Sheriff. He testified he received a call at about 4:15 p.m. on the date of the shooting. He picked up another deputy and went to the store. He testified that he saw a black male lying on the ground and a lady [who later developed to be the appellant] standing nearby with a gun in one hand and the other hand across her face, and crying. Fairburn walked over toward appellant and she gave him the gun. Fairburn testified that he then had appellant sit on the backseat of the patrol car while he concluded his investigation. He gave absolutely no testimony regarding any statement made by appellant. The state then introduced two of the eye-witnesses, whose testimony was essentially the same as heretofore related, except that neither knew where appellant had secured the pistol.

The state introduced testimony from the Sheriff of Pike County who arrived at the scene shortly after the arrival of the two deputies. He testified the deceased was lying on the ground and he still had his right hand in the right pocket of his pants. He gave no indication that he talked with appellant. In addition to other witnesses, appellant gave personal testimony. It was essentially as heretofore related, including definite testimony as to where she secured the pistol immediately prior to the shooting.

In rebuttal, the state called one witness, Deputy Sheriff Bruce Fairburn. He testified for the first time that he read appellant her constitutional rights when he placed her in the patrol car and that appellant then told him she wanted to tell everything to him. According to Fairburn, she then described the preliminary incidents which were essentially those hereinbefore set out. The significant part of Fairburn’s testimony in rebuttal was that appellant told him she had the gun on her person under her shirt.

Appellant’s attorney noticed that Deputy Fairburn was reading or refreshing his memory by some kind of writing. This developed to be a transcript of a tape recording. Upon being questioned about this, it was ascertained, and the state readily admitted, that the day or night before the trial, the district attorney talked with Deputy Fairburn and transcribed his statement. Although the statement was in the nature of a confession, the availability of the transcript was not made known to appellant’s attorney nor was a copy given him. Appellant’s attorney was not advised of this confession and/or statement given to Deputy Fairburn shortly after the incident occurred. The first appellant’s attorney, or anyone interested in the appellant’s defense, knew of the alleged statement by appellant, was when Deputy Fairburn was placed on the stand as a rebuttal witness and had given the testimony set out above. As hereinabove stated, no mention whatever of any statement by appellant was included in Deputy Fairburn’s direct testimony introduced by the state.

Appellant’s attorney, as an officer of the court, stated without contradiction that three or four nights prior to the trial, he had a conference with Deputy Fairburn, at which time all the deputy told him was that appellant said, “I shot him.” Deputy Fair-burn did not positively deny the in-court statement of appellant’s attorney, only saying, “I don’t think so, no, sir. I may have, but I don’t recall.”

Appellant’s attorney moved the court to instruct the jury to disregard the rebuttal testimony of Deputy Fairburn regarding the statement of appellant or in the alternative, a mistrial. This was on a number of grounds, including the failure of the state to conform to discovery under Mississippi Uniform Criminal Rules of Circuit Court Practice, 4.06. Furthermore, the rebuttal testimony was in effect a confession to the officer that was reduced to a written instrument.

The lower court overruled appellant’s motion, saying in part, that the securing of Fairburn’s transcript regarding appellant’s statement was the work product of the state’s attorney and further that “[y]ou were entitled to, and did, apparently, talk to the witnesses and I do not know what you were told at the truck stop, but apparently, that wasn’t under oath, and it wasn’t at a time when the witness was under an oath .... ” In other words, there was no serious contradiction of appellant’s attorney’s rebuff during his conference with Deputy Fairburn and it is rather surprising, to say the least, that the trial court would condone such proceedings because the Deputy “wasn’t under oath.”

In our opinion, the record on the first assignment of error indicates at least some form of what experienced trial attorneys call “sandbagging.” Obviously the most important part of the entire trial was whether or not appellant secured the pistol out of the van and it remained in plain view or whether she was carrying it upon her person. There could be no more damaging testimony than that by Deputy Fairburn regarding this point, as the last evidence presented to the jury.

We find it was error for the court to deny appellant’s motion to either instruct the jury to disregard the rebuttal testimony of Deputy Fairburn or to grant a mistrial.

Appellant contends that she was not allowed sufficient leeway in presenting evidence of prior actions of the deceased toward her. She offered records of Justice Court Judges regarding convictions as a result of complaints made by her. These were excluded as being too far removed and remote in time. The court did allow testimony as to the reputation of the deceased for peace or violence and for carrying firearms. The witnesses were unanimous that his reputation was that of violence and he had a reputation for carrying firearms.

Under the undisputed evidence in this case, it is our opinion that much flexibility should have been given appellant in presenting prior harassments, threats and assaults directed toward her. Such evidence is material on the motives of both appellant and deceased in presenting the incidents that occurred in front of the store. The attitude, relationship and feelings of the accused and the deceased toward each other are material. Harley v. State, 345 So.2d 1048 (Miss.1977); Rucker v. State, 248 Miss. 65, 158 So.2d 39 (1963); Clark v. State, 123 Miss. 147, 85 So. 188 (1920); Brown v. State, 88 Miss. 166, 40 So. 737 (1906); Guice v. State, 60 Miss. 714 (1883); and Josephine v. State, 39 Miss. 613 (1861).

This Court is hesitant to criticize and we hope that whenever this occurs, it is directed in a constructive manner. A thorough study of this cause indicates that we should reiterate what we have said on prior occasions; that is, an accused is not entitled to a perfect trial, but he is entitled to a fair trial. With all deference, we do not think that appellant received such and we are forced to reverse and remand the cause for another trial before another jury without the errors above discussed.

REVERSED AND REMANDED.

PATTERSON, C.J., WALKER and BROOM, P.JJ., and ROY NOBLE LEE, HAWKINS, DAN M. LEE, PRATHER and ROBERTSON, JJ., concur.


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    Walter J. BURKES, Jr. v. STATE of Mississippi.
    No. 54002.
    Supreme Court of Mississippi.
    Feb. 9, 1983.
    Rehearing Denied March 2, 1983.
    Thomas D. Lee, Forest, for appellant.
    Bill Allain, Atty. Gen. by Walter L. Turner, Sp. Asst. Atty. Gen., Jackson, for appel-lee.
   Appeal from Circuit Court, Scott County; Marcus D. Gordon, Judge.

Before WALKER, P.J., and HAWKINS and ROBERTSON, JJ.

AFFIRMED.

PATTERSON, C.J., BROOM, P.J., and BOWLING, DAN M. LEE and PRATHER, JJ., concur.

ROY NOBLE LEE, J., takes no part.