In every redhibition action, if the evidence establishes only a partial failure of consideration, the court has the power and duty to decree a recovery in quanti minoris, i.e., a reduction of the purchase price. La.Civil Code Article 2543; Ingersoll v. Star-Chrysler, Inc., 234 So.2d 85, 87 (La.App. 4th Cir. 1970). We hold that the trial court did not abuse his discretion in finding that the nature of the problems did not amount to a redhibitory defect.
Defendants argue that the defects in plaintiffs' mobile home are not serious enough to render the mobile home "either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice." LSA-C.C. Art. 2520. Defendant Mays cites two cases, Cernigliaro v. Marquis Marine, Inc., 381 So.2d 886 (La.App. 2nd Cir. 1980) and Ingersoll v. Star Chrysler, Inc., 234 So.2d 85 (La.App. 4th Cir. 1970), writ denied 256 La. 366, 236 So.2d 499 (1970), for the proposition that if the evidence establishes only a partial failure of consideration the trial court has the power and the duty to decree a reduction of the purchase price. The cases cited by Mays involve a boat and an automobile.
If the evidence in a redhibitory action establishes only a partial failure of consideration, a reduction in the price, rather than rescission of the sale, is appropriate. Wade v. McInnis-Peterson Chevrolet, Inc., 307 So.2d 798 (La.App. 1st Cir. 1975); Wolfe v. Henderson Ford, Inc., 277 So.2d 215 (La.App. 3rd Cir. 1973); Ingersoll v. Star Chrysler, Inc., 234 So.2d 85 (La.App. 4th Cir.), cert. denied, 256 La. 365, 236 So.2d 499 (La. 1970). See also LSA-C.C. arts. 2541, 2543.
"In every redhibitory action if the evidence establishes only a partial failure of consideration, a reduction in the purchase price may be granted to the buyer. See Ingersoll v. Star Chrysler, Inc., La.App., 234 So.2d 85 (4 Cir. 1970), writ refused 256 La. 365, 236 So.2d 499 (1970); Wolfe v. Henderson Ford, Inc., La.App., 277 So.2d 215 (3 Cir. 1973). See also LSA-C.C. Arts. 2541, 2543.
"In every redhibitory action if the evidence establishes only a partial failure of consideration, a reduction in the purchase price may be granted to the buyer. See Ingersoll v. Star Chrysler, Inc., La.App., 234 So.2d 85 (4 Cir. 1970), writ refused 256 La. 365, 236 So.2d 499 (1970); Wolfe v. Henderson Ford, Inc., La.App., 277 So.2d 215 (3 Cir. 1973). See also LSA-C.C. Arts. 2541, 2543.
Smith v. Max Thieme Chevrolet Company, Inc., 315 So.2d 82 (La.App. 2nd Cir., 1975). Yet, the circumstances here present make that virtually impossible. Accordingly, I believe that a reduction in the purchase price, quanti minoris, should have been the form of relief granted instead of rescission. See: LSA-C.C. Art. 2543; Ingersoll v. Star Chrysler, Inc., 234 So.2d 85 (La.App. 4th Cir., 1970), writ ref., 256 La. 365, 236 So.2d 499; Wade v. McInnis-Peterson Chevrolet, Inc., 307 So.2d 798 (La.App. 1st Cir., 1975). Accordingly, I respectfully dissent.
In every redhibitory action if the evidence establishes only a partial failure of consideration, a reduction in the purchase price may be granted to the buyer. See Ingersoll v. Star Chrysler, Inc., La.App., 234 So.2d 85 (4 Cir. 1970), writ refused 256 La. 365, 236 So.2d 499 (1970); Wolfe v. Henderson Ford, Inc., La.App., 277 So.2d 215 (3 Cir. 1973). See also LSA-C.C. Arts. 2541, 2543.
However, in view of the fact that the evidence establishes plaintiff paid for and should have received a factory air-conditioned vehicle, under Civil Code Article 2543, which provides that in a redhibitory suit "the judge may decree merely a reduction of the price", we will treat this action as one in quanti minoris. Ingersoll v. Star Chrysler, Inc., La.App., 234 So.2d 85; See Gauche v. Ford Motor Company, La.App., 226 So.2d 198; Pursell v. Kelly, supra, footnote 1; See also LSA-C.C.P. Art. 2164, which confers on us the right and duty to render any judgment which is just, legal and proper upon the record on appeal. Inasmuch as we have determined plaintiff is not entitled to redhibition, as she was told by defendant's employees the car contained the air conditioning, and as she paid for the same, we find it unnecessary to discuss the second contention.
The Supreme Court in Coco v. Mack Motor Truck Corp., 235 La. 1095, 106 So.2d 691 (1958), stated that in every redhibitory action, the trial judge has the power and the duty, if he believes the evidence establishes only a partial failure of consideration, to decree a quanti minoris. Other cases Ehrlich v. Roby Motors Co., 166 La. 557, 117 So. 590 (1928); Ingersoll v. Star Chrysler, Inc., 234 So.2d 85 (La.App. 4th Cir., 1970), writs refused 256 La. 365, 236 So.2d 499 (1970); Wolfe v. Henderson Ford, Inc., 277 So.2d 215 (La.App. 3rd Cir., 1973). Plaintiff contends that the trial judge erred in the assessment of damages awarded.
However, to support such a responsive decree the plaintiff bears the burden of establishing not only the existence of the defects of which he complains, but also the amount of reduction to which he is entitled. Coco v. Mack Motor Truck Corp., supra; Ehrlich v. Roby Motors Co., 166 La. 557, 117 So. 590 (1928); Ingersoll v. Star Chrysler, Inc., 234 So.2d 85 (La.App. 4th Cir. 1970); Papa v. Louisiana Metal Awning Company, supra; Harding v. Ed Taussig Edsel Motors, Inc., 130 So.2d 517 (La.App. 3d Cir. 1961); Loeb v. Neilson, 128 So.2d 447 (La.App. 4th Cir. 1961); Lillis v. Anderson, 21 So.2d 389 (La.App. Orl. 1945); Reimann Const. Co., Inc. v. Upton, 178 So. 528 (La.App.Orl. 1938). In the present suit plaintiff did not pray for such relief nor did he introduce any evidence on which any particular amount of reduction could be based.