Alfortish v. Pailet

4 Pelt. 59

• Court: Louisiana Court of Appeal
• Decided: July 1, 1920
• Docket: No 7850
• Status: Published

Opinions

Dlnkelaniel. J

The substantial fasts In this case, briefly stated., are to the following effect.

Plaintiff bought from defendant a certain lot of ground for the sum of $600.- $10. cash and the balance on the installment plan of $1.35. per week. During a period of about six years plaintiff paid to defendant $341. when defendant sold the lot to another purchaser, claiming a forfieture of $341. under the terms of his contract.

Svera Defendant sdsckta, that since plaintiff had defaulted, as herein above alleged, he felt himself free to sell said lot to another person.

Plaintiff alleged in her petition, that by the terms of said oontraot, that the purchase price , as stipulated , should be paid in weekly installments of $1,35.¡ and it was further stipulated, that if she should not make any weekly payments for eight weeks, then, without default, the contract became null and void, and the payments made forfeited.

The defendant relies, in his answer, on his right of forfeiture, and admits the allegations contained in plaintiff's petition.

The record shows that this case was regularly fixed for trial from time to time anft for many weeks in the District Court. Beyond filing the contract of sale, on terms as stipulated by plaintiff, nothing else was done. On the final trial of the case, in the absence of defendant's Counsel, there was before the Court the document (failed an agreement to sell together with the testimony of plaintiff.and the receipts that she paid from time to time both to defendant and at times to his Attorney, the full 'amount claimed by her to which there was no denial.

It appears that the la3t payments made by plaintiff was made on November, 14th. 1916, and ifiPWigdfe# 533PWpSS subsequently on August, ál7, she was notified by the Attorney of defendant she must increase the weekly payments to §3. per week or else forfeit all she had paid, giving her four weeks in which to comply with the terms in the letter.

Defendant claimed in his answer, and as set out in his brief and in argument, that plaintiff is not entitled to the return of the money paid by her under her contract, because she had collected certain revenues, thfe amount of which has never been set out much less proven, and because there remained an unpaid balance , under the contract, which had not been paid.

He gather from t^e Skj55tXSK*»**i brief and also the argument of Counsel for defendant, that he complains against the action of plaintiff's Counsel for hav-ing prosecuted this ca3e to final judgment without Counsel being present at the time, and he asks this Court, for that reason, to remand the case back to the lower Court in Order that he might have an opportunity to properly present his evidence in that Court, in view of the faot that judgment was rendered against -his olient without his having an opportunity of presenting defendant 13 r i ght s.

It has been frequently held, that in the Civil District Court for the Parish of Orleans, oases, are regularly called and fixed for trial after answer filed. These fixings are posted, and it is a well established faot that Lawyers must, in order to protect their clients interests, see to these postings, prepare their cases and be ready for trial whenever same are called. T/.is was followed in this case. Pc3ting3 were had at regul -ar intervals, the cáse Wae fixed for trial several times, at times defendant's Counsel was present, but what-ier the oase ñas reached or aot this récord does not stow. But finally it was reacted in due course, and whether or not plaintiff's Counsel did or did not show -shat courtesy which the latter insists upon, is not a Eatter of defence only hut could he urged before the tribunal which had the case in charge. It is admitted, in oral argument, that this was not done and no application was made to the Judge for a nevT trial until after the judgment had been signed and became final, and then this appeal was taken.

In so far as courtesies are concemd, it is not for us to determine what same should he. We only have the law and the evidence to look after and to decide in accordance therewith. There was no violation in any respect of the law, and we are stisfied it Would not have been permitted by the Judge^if. there had been any. In faot, there is no complaint so far as the Judge is concerned. The only complaint being one of want of courtesy on the part of plaintiff's Counsel. With that matter we have no concern, and we donot decide for the reason there is nothing to decide.

An examination of the contract entered into between the parties convinces us, that no matter under what name it may he termed, it pose.eee all the elements of a sale as set out in our Civil Code, ahd id a sale in fact and is covered by dll the laws regulating sales/

The Supreme Court of this State has had occasion to ‘ pass upon contracts of this character, and has held same to be sales, no matter whether the parties so intended oonsiderred or not and even though they may not be contracts of sale. State Ex. Rel. Buckley vs. Whited & Wheless, 104 La. 125. Girault vs. Feucht, 117 La. 384. Rev. C. C. Art. 3439. Article 3561 of the Code also provides; "When the buyer does not pay the prioe, the seller may sue for a dissolution thereof. This course does not seem to have osen adopted in this case, however, tne seller without having taken any proceedings whatsoever soldy í5iSá88Se wSch was -che subject of this contract to a third party, and it is only when the other party to the contract, the plaintiff in this case, has been dispossessed of her property through her vendor-and sues to recover what sne paid on account thereof, that he comes into Court and claims non-fulfillment of her obligation, under that contract, and seeks to recover for these breaches*

we have been unable to find any authorities giving defendant any such rights, nor has any been supplied us by him* Those supplied in the supplemental brief, in our opinion, have no application to this case, nor are we of opinion, that under the law governing sales of this character, one could take back the thing sold and at the same time withold what has been paid on account thereof *

Defendant also complains, that while plaintiff sue3 for the return of/ the amount of money which had been paid on account of this contracyfrhen she had rever tendered to him the amount of balance due on same, the interest thereon, or even the amount of taxes paid on the property by him, Concesding this to be true, it is equally true, that defendant ha3 his remedy and could have asked for that relief, but he has failed to do sc. The pleadings show no reconventional demand having been mads by him for any of the things he new complains of, the first time in this Court, and not having prayed for that relief in the Court below, it is impossible for us, at this time, to grant this request.

The judgment of the District Court was in favor of plaintiff for the amount claimed by her. In our opinion said judgment is correct and is now affirmed.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be, and tns same is hereby affirmed. Defendant to pay cost3 of both Courts.

—Judgment .A if irme d-