Facts
The dispute opposes Mrs. [R.], the project owner, to company [T.], responsible for the execution of carpentry and framing work for the construction of a chalet. The award resulted from a verbal agreement concluded in the spring of 1979, based on a bid established on March 22, 1979, for a total amount of 71,211 francs. The work lasted until the first half of October 1979, with delays partly due to additional work ordered by Mrs. R.
At the end of the work, [T.] sent its invoice of 90,199 fr. 45 to the architect in charge of the construction, who was authorized by the project owner to deal with the contractors and receive all correspondence. Four months later, Mrs. [R.] established her own account, with deductions of a total amount of 3,122 fr. 85, including a penalty of 1,000 francs for delay in the execution of the work, as well as a 6% discount. [T.] contested this account, and its fiduciary established a new account presenting a balance due of 8,393 fr. 45 after deduction of the advances paid.
[T.] brought an action against Mrs. [R.] for payment of 8,393 fr. 45 with interest at 5% from October 16, 1980. The defendant concluded that the claim should be dismissed and, by way of counterclaim, payment of 5,000 francs. The Cantonal Court of Valais condemned the defendant to pay the amount of 8,393 fr. 45 with interest at 5% from October 16, 1980, and dismissed the counterclaim.
Considerations
The Federal Court examined the appeal for reform of the defendant and considered that the Cantonal Court had not examined the validity of the deductions made by the defendant in her account. The cantonal court had considered that the defendant's contestation constituted an abuse of rights, as it had been raised four and a half months after receipt of the plaintiff's account.
However, the Federal Court ruled that the non-contestation, for a few months, of a detailed invoice from a contractor cannot be considered as a tacit acceptance of this invoice. Art. 6 CO is not applicable in such a case, and the silence kept…