# Maloney v. Oak Builders, Inc.

> Supreme Court of Louisiana · May 4, 1970 · 256 La. 85

URL: https://www.frixlaw.com/law-library/cases/9685666

## Case

- **Full name:** Olga KENNY, Wife of/and Paul MALONEY, Jr. v. OAK BUILDERS, INC., Et Al.
- **Court:** Supreme Court of Louisiana
- **Decided:** May 4, 1970
- **Citations:** 256 La. 85; 235 So. 2d 386; 1970 La. LEXIS 3827
- **Precedential status:** Published
- **Opinion:** Dissent by Barham
- **Judges:** Hamlin, Barham
- **Cited by:** 157 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9685666

## Opinion text

BARHAM, Justice
(dissenting).
I must dissent from the majority’s holding that the subcontractors are liable to the general contractor pro rata for the attorney’s fees (on the basis of their indi *107 vidual liability proportionate to the total liability for faulty performance under the subcontracts) awarded plaintiffs in their suit against the general contractor.
Our law forbids the awarding of attorney’s fees except where there is a special provision in the contract between the parties or where attorney’s fees are allowed by statute. Earlier in the opinion the majority itself says: “It is well recognized in the jurisprudence of this Court that as a general rule attorney’s fees are not allowed except where authorized by statute or contract. Hernandez v. Harson, 237 La. 389 , 111 So.2d 320 . Attorney’s fees are not allowable in an action for breach of contract unless there is a specific provision therefor in the contract. Morein v. G. J. Deville Lumber Co., La.App., 215 So.2d 208 . * * ”
The majority’s error is in failing to note that there is no contractual obligation between the subcontractors and the contractor in regard to any attorney’s fees. Their obligation to the contractor was to render their services in a workmanlike manner, to be responsible to the contractor for damages incurred by reason of their failure to perform. They have been cast for the costs of their defective workmanship. This is their measure of damages for breach of contract, and they should not, they cannot, be cast for the attorney’s fees that were the subject of a contract between the contractor, its surety, and the owners, to which they were not parties. *
The majority holding accomplishes what it says the law forbids. I reiterate: There is no contract for attorney’s fees between the subcontractors and the contractor, and there is no statutory liability. I cannot subscribe to the majority’s view that the subcontractors are liable for pro rata shares or any portion of the exorbitant attorney’s fees agreed to by the contractor and its surety in the contract with the owners. Attorney’s fees are not an element of damages for breach of contract in the absence of specific provision in the contract between the parties that they constitute an item of damages.
I respectfully dissent.
I concur only in the result which casts the contractor for attorney’s fees to the plaintiffs.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9685666. Public record. Not legal advice.