CHARLES E. CLAI30R3E, JUDGE.
The only question in this case is whether the broker •who brought about a contract of sale between the plaintiff and the defendant herein is entitled to a commission. The pleadings are a.s follows:
Plaintiff Bonura alleged that in accordance with a Tiritten- document annexed to his petition he agreed to buy from the defendant, Davidson, a certain lot of ground for the price of §2100; that he deposited ten per cent of this price, say.. §210 with If. J, hiesi, the broker who effected the sale; that he, the plaintiff, refused to consummate the sale and to take the property for the following reasons:
A. "Petitioner had had no opportunity to^examine the improvements on said-property before the time when said agreement to purchase was signed, and, upon examination, found that the improvements were not ae represented; that the buildings on ’said property had not' been erected in a proper and workmanlike manner; that the said buildings and other constructions on the grounds covered by the said agreement, had not been completed";
B. "That notwithstanding the obligation of defendant, John P. Davidson, Jr,, to sell and deliver-a property free from incumbrances, the said property was not free from encumbrances, but was instead subject to a convnetional mortgage and to a judicial mortgage recorded against the said John P. Davidson, Jr. x x x x That defendant, John E. Davidson, has called upon petitioner to take said property end has threatened to forfeit the ten per cent de^pdsit made by petitioner as aforesaid, but that at the time when Davidson agreed to sell said property no valid title could be made thereto, and that, notwithstanding the I-ur* delay during which petltieaer [70]*70lias waited since t} at time, the said John Davidson’s title to seicl property is still encuno-i-red ?,nd faulty as aforesaid".
Plaintiff therefore prayed for judgment against John ?. Davidson for double t?ie amount deposited by him, or ¿420, and against Clesi for ¿210.
The document a ( lexed to the petition is in the following
"hew Orleans, 4 - 1 - 1916.
hr. 1.'. J. Clesi.
I '-'erccy agree to purchase tl rough you the following ^escribed r{■»/*! estate: 2500-02 Prieur - double cottage - 4 rooms each side - ground Pleasures 33 x 80 - T’-'c price to je Tv/enfy-onc Hundred Dollars - Terms of pJLl cash .< x x If this offer is accepted, I bind, myseli to deposit rn th you, i rj.vedintely, ten per cent in cash of the purchase price, also to take the property upon above terns, if a good and valid title cr-n be given. In the event of ay failure to comply -ith the terns of this offer, I ouligate myself to pay on demand your cor-ifiission of three per cent on the purchase price and any attorney’s fees and costs of court \f,uieh you mityit incur in enforcing collection of your claim, x x x
“Si/neó" And red D onura
”1 accept the above offer, also tenas and conditions, ij;d agree to pay you for services rendered 150.00 wfi'ié being earned und payable 'he-i /r-.reement to parchaoe ie signed :\.*.d t ’.o offer accepted.
”Signed” John F. D;'**id:-.on
by A. L. De Jun¿" .
The Oefendmt Clesi admitted t u deposit of ¿210 and for defense aVJe^ed:
He admitted i .at t evo "'as aviur;†. sc iú property a judicial a .id conventional art out tr? I said mort^a^eo to^ct'er i .ou.ic.ed to far less thai. t.¡e agreed párchese price of the property; that far from rjl^i-vtiff being entitled to fc.:e clotide of the aiiotu L deposited by hi*”, ho has in fact forfeited [71]*71the deposit of $210 and ocsides lias .is.de himself liable to Clesi for three per cent of the amount of the purchase price together with £50 attorney’s fees, v-iiich he claimed in reconvention.
Davidson admitted that "Lie plaintiff '•’ad refused to take the title, on account of the existence of th‘e judicial and conventional mortgage *-'hich he admitted; but he averred that they were less in amount than the price of sale agreed upon, and tnet, in the usual course of ousiness, they would have been can-celled at tie time of signing tne act of sale; he admitted that he had called upon the plaintiff to take the property and tutit upon his rhilure so to do /is deposit would be forfeited; he aslced that the plaintiff’s petition be dismissed and for judgment in reconvention for $.°50.
There v:as judgment for the plaintiff as prayed for, and rejecting the reconventional demands of the defendants.
Prora this judgment Clesi alone has appealed.
The allegations of the petition and of the answer are borne out oy the evidence.
Delvaille K. Theard, attorney for the plaintiff,testified that he represented the oleiutiff *?hen he purchased the property; that Joseph Lautensc/.l:-..er represented the defendant; he notified ~r. Lauucnschlae0er that refused to take t.ie title for the reasons stated in the petition and oecause the property was subject to a jadg-ient Mid to a aortgage €w,ainst Davidson; on April 21st, 1915, i.r. Lf»uteiischlafc¿er "'rote to his office a letter in ... joh he stated that if Bonura did not the property he was going to put Jim in default; he did nol answer Lautenschlawger in -tí ting; but he* told M*n tn put Sonura in default end thrt he refused t .e oitle oecnase t”?n .uort ;«ges on tne property; L'-atensc""!?e..er never put hi ft in default; he cet him several tim&ti on the street and ar.Jced hi.-) to put Donara in default; finally in Sovencer 191c, while tne judgment n.:l tne iort„..c.»je •■ere .still recorded against t ie property, .-<e ..rougnt tnis suit-for f e reason that t.:e jad... luí ;.na the lortj.r.e still rested on the property and .Tor t-o other reason «-írte.d in the petition.
The convelí neo certificate •. ows that Davidson sold this property on July 7t i, 1916.
Davidson swears Ve col’ it for 7T1TK-. The defendsuit [72]*72Clesi testifies: “we can deliver the property at this time at the price that Bonura purchased it for",
The plaintiff has abandoned his first ground of action»
The plaintiff.’s obligation reads as follows:
“In the event of my failure to comply with the terms of this offer, X obligate myself to pay on demand your ((^lesi’s) -commission of 3 per cent on the purchase price and any attorney’s fees &c“.
^ Of course that meant a failure to comply sithout any valid cause on the part of Bonura. We thinh Bonura was without valid cause for two reasons: First: the existence of a mortgage upon property offered for sale is not sufficient ground to reject the title or to refuse to pass tne act of sale, unless it is shown that it is riot in the power of the prospective vendor to release trie mortgage or that he refuses to do so. To hold otherwise v/ould put it out of the pwwer of an owner of property encumbered with a ■‘tortgoge to sell it, and would place the property out of commerce. The point was nade and decided in Grinshaw vs Hart, 6 Rob., 265. The facts are as follows: Defendants contracted to purchase a. piece of land but refused to execute the contract on the ground that the property was encumbered with mortgages.
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CHARLES E. CLAI30R3E, JUDGE.
The only question in this case is whether the broker •who brought about a contract of sale between the plaintiff and the defendant herein is entitled to a commission. The pleadings are a.s follows:
Plaintiff Bonura alleged that in accordance with a Tiritten- document annexed to his petition he agreed to buy from the defendant, Davidson, a certain lot of ground for the price of §2100; that he deposited ten per cent of this price, say.. §210 with If. J, hiesi, the broker who effected the sale; that he, the plaintiff, refused to consummate the sale and to take the property for the following reasons:
A. "Petitioner had had no opportunity to^examine the improvements on said-property before the time when said agreement to purchase was signed, and, upon examination, found that the improvements were not ae represented; that the buildings on ’said property had not' been erected in a proper and workmanlike manner; that the said buildings and other constructions on the grounds covered by the said agreement, had not been completed";
B. "That notwithstanding the obligation of defendant, John P. Davidson, Jr,, to sell and deliver-a property free from incumbrances, the said property was not free from encumbrances, but was instead subject to a convnetional mortgage and to a judicial mortgage recorded against the said John P. Davidson, Jr. x x x x That defendant, John E. Davidson, has called upon petitioner to take said property end has threatened to forfeit the ten per cent de^pdsit made by petitioner as aforesaid, but that at the time when Davidson agreed to sell said property no valid title could be made thereto, and that, notwithstanding the I-ur* delay during which petltieaer [70]*70lias waited since t} at time, the said John Davidson’s title to seicl property is still encuno-i-red ?,nd faulty as aforesaid".
Plaintiff therefore prayed for judgment against John ?. Davidson for double t?ie amount deposited by him, or ¿420, and against Clesi for ¿210.
The document a ( lexed to the petition is in the following
"hew Orleans, 4 - 1 - 1916.
hr. 1.'. J. Clesi.
I '-'erccy agree to purchase tl rough you the following ^escribed r{■»/*! estate: 2500-02 Prieur - double cottage - 4 rooms each side - ground Pleasures 33 x 80 - T’-'c price to je Tv/enfy-onc Hundred Dollars - Terms of pJLl cash .< x x If this offer is accepted, I bind, myseli to deposit rn th you, i rj.vedintely, ten per cent in cash of the purchase price, also to take the property upon above terns, if a good and valid title cr-n be given. In the event of ay failure to comply -ith the terns of this offer, I ouligate myself to pay on demand your cor-ifiission of three per cent on the purchase price and any attorney’s fees and costs of court \f,uieh you mityit incur in enforcing collection of your claim, x x x
“Si/neó" And red D onura
”1 accept the above offer, also tenas and conditions, ij;d agree to pay you for services rendered 150.00 wfi'ié being earned und payable 'he-i /r-.reement to parchaoe ie signed :\.*.d t ’.o offer accepted.
”Signed” John F. D;'**id:-.on
by A. L. De Jun¿" .
The Oefendmt Clesi admitted t u deposit of ¿210 and for defense aVJe^ed:
He admitted i .at t evo "'as aviur;†. sc iú property a judicial a .id conventional art out tr? I said mort^a^eo to^ct'er i .ou.ic.ed to far less thai. t.¡e agreed párchese price of the property; that far from rjl^i-vtiff being entitled to fc.:e clotide of the aiiotu L deposited by hi*”, ho has in fact forfeited [71]*71the deposit of $210 and ocsides lias .is.de himself liable to Clesi for three per cent of the amount of the purchase price together with £50 attorney’s fees, v-iiich he claimed in reconvention.
Davidson admitted that "Lie plaintiff '•’ad refused to take the title, on account of the existence of th‘e judicial and conventional mortgage *-'hich he admitted; but he averred that they were less in amount than the price of sale agreed upon, and tnet, in the usual course of ousiness, they would have been can-celled at tie time of signing tne act of sale; he admitted that he had called upon the plaintiff to take the property and tutit upon his rhilure so to do /is deposit would be forfeited; he aslced that the plaintiff’s petition be dismissed and for judgment in reconvention for $.°50.
There v:as judgment for the plaintiff as prayed for, and rejecting the reconventional demands of the defendants.
Prora this judgment Clesi alone has appealed.
The allegations of the petition and of the answer are borne out oy the evidence.
Delvaille K. Theard, attorney for the plaintiff,testified that he represented the oleiutiff *?hen he purchased the property; that Joseph Lautensc/.l:-..er represented the defendant; he notified ~r. Lauucnschlae0er that refused to take t.ie title for the reasons stated in the petition and oecause the property was subject to a jadg-ient Mid to a aortgage €w,ainst Davidson; on April 21st, 1915, i.r. Lf»uteiischlafc¿er "'rote to his office a letter in ... joh he stated that if Bonura did not the property he was going to put Jim in default; he did nol answer Lautenschlawger in -tí ting; but he* told M*n tn put Sonura in default end thrt he refused t .e oitle oecnase t”?n .uort ;«ges on tne property; L'-atensc""!?e..er never put hi ft in default; he cet him several tim&ti on the street and ar.Jced hi.-) to put Donara in default; finally in Sovencer 191c, while tne judgment n.:l tne iort„..c.»je •■ere .still recorded against t ie property, .-<e ..rougnt tnis suit-for f e reason that t.:e jad... luí ;.na the lortj.r.e still rested on the property and .Tor t-o other reason «-írte.d in the petition.
The convelí neo certificate •. ows that Davidson sold this property on July 7t i, 1916.
Davidson swears Ve col’ it for 7T1TK-. The defendsuit [72]*72Clesi testifies: “we can deliver the property at this time at the price that Bonura purchased it for",
The plaintiff has abandoned his first ground of action»
The plaintiff.’s obligation reads as follows:
“In the event of my failure to comply with the terms of this offer, X obligate myself to pay on demand your ((^lesi’s) -commission of 3 per cent on the purchase price and any attorney’s fees &c“.
^ Of course that meant a failure to comply sithout any valid cause on the part of Bonura. We thinh Bonura was without valid cause for two reasons: First: the existence of a mortgage upon property offered for sale is not sufficient ground to reject the title or to refuse to pass tne act of sale, unless it is shown that it is riot in the power of the prospective vendor to release trie mortgage or that he refuses to do so. To hold otherwise v/ould put it out of the pwwer of an owner of property encumbered with a ■‘tortgoge to sell it, and would place the property out of commerce. The point was nade and decided in Grinshaw vs Hart, 6 Rob., 265. The facts are as follows: Defendants contracted to purchase a. piece of land but refused to execute the contract on the ground that the property was encumbered with mortgages. iEn an action for a specific performance, held^that the existence of the mortgages authorized the defendants to retain the price until the mortgages were released or security ¿ivea? out did not absolve them from the obligations of completing the purchase.
It is true the.o in that case it appears that the rotary, in preparing tne act of sc.le, had included a clause for the intervention of the mortgagees and their release of the mortgage on payment of their claims out of the price to be paid by the purchaser; rnd that the mortgagees v-ere ready and willing to grant a release on receiving payment of their claims; and that this evidence does not apoear in this case. But the case did not turn upon that point. Whether the act provided for tne intervention of the creditors or not, whether t*.e creditors were willing or not to grant a ro3 ease, all the purchaser had a right to do, was to retain, out of tne purchase price, the amount of tr.e mortgages. But he the last proposition sound or not, we entertain no doubt [73]*73that if the nortgage creditors are billing to release their mortgage at the time that the £>urchaser parses toe act of aale and pays the price, that he ca\not refuse to accept title to a property on the oare ground that there ere nortgages recorded against; it. See 7 L., 290; 7 A., 477; 36 A., 989; Dalloz Codes Ann. Art 1599 ifo. 109 p. 89.
II. The ¿urden iras upon the plaintiff, as purchaser, put the defendant Davidson, as vendor, in default, if he ed to cancel the sale. Davidson*s inaction a passive tt violation ?nc did not authorize the plaintiff to demand a rescission of the sale without puttin„ Davidson in default. In the ct’pe of Sewell vs Wilcox, 5 R., 83, the plaintiff, purchaser, brought suit to cancel the sale of certain Ioós of ground nn the /,round that they were encumbered with .nort^o^es which the vendor 'Wilcox had pronised, out failed, to cancel, not-vithst* nding a '^^etfer had been addressed to Wilcox notifying him that =uit •ould be broue-ht to a*u;ul t¿ e sale. The C:uvt said on p. 87:
"It does not very clearly appear whether this letter .ms received by Wilcox; out, admitting th.-t itieached him, it contained no offer on tue part of Sewell to perform his part of the contract, vn.icn was to pay the purchase money then due. x x x the putting in default of the vendor, Wilcox, was an indispensible prerequisite to the rescission of tT^.e contract, on the ground of his failure to comply -with his obligation to cancel them. C. C. 1906; 6 N. S., 229; 3 La., 382; 6 La., 151". 4 R., 162; 1 Ct. App. 34.
In Charpaux vs Bellocq, 31 A., 165, tne Court said:
(Syllabus) 11 Hie failure of the vendor to perform a condition of the sale is a passive breach of contract, and before an action to annul oecause of such breach can be .ft&iiYintined, tve vendee must be put in default. An offer to annul made oy the vendor does not amount to a default".
In Harm vs Graffagnino, 121 La., 263 plaintiff aad. agreed to soy property from the defendant; out the property was encunjered ’it'-, a .inor's aort^nge; plaintiff (vendee) called upon dependent (vendor) to erase the mortgage; t? e vendor refused; plaintiff sued for specific performance - >>eld:
plaintiff never paid nor tendered pny.ie.at of the price; suit [74]*74dismissed. 14 A., 606, 234.
Davidt.cn sold the property only long after Bonura had refused to accept the title. As between them, Davidson perhaps had no right to .-flake the salcf* but the fact regains that not only Bonura failed to comply with the terms of his Offer, but positively refused bo to do, and thu3 gave life to Cle*i’s claim against him.
Considering that the services of Clesi’s attorney have boon rendered in the presence of the Court^are apparent on the record, we feel authorized to fix his fees for collecting this comiission. 5 N. S., 399 (401); 15 La., 394 (399); 25 A., 647; 27 A., 467; 49 A., 1074, 1115; 51 A., 590 (604); 9 Ct. App., 305.
V/e shall therefore fix the fee at twenty-five dollars.
It is therefore Ordered that the judgment herein, in favor of Andrea Bonura against 17. J. Clesi be reduced from Two Hundred and ten dollars to One Hundred and twenty-tv/o dollars, that the plaintiff pay the costs of nppeal^and Clesi the costs of the lower court, and as thus amended that the judgment be affirraed.
November 10th, 1919.