PONDER, Justice.
The defendants are appealing from a judgment condemning them to specifically perform a contract for the transfer of real estate. This is the fourth suit that the plaintiff has brought under an option to sell contained in a lease contract entered into between him and the defendants’ husband and father, Lucas J. Schiro.
On January 2, 1951, Lucas J. Schiro leased to plaintiff the premises located at 5000 Jefferson Highway, known as the Schiro property, measuring 237 foot front on the Jefferson Highway by a depth of 597 foot, for a primary term of five years, commencing on February 1, 1951 and ending January 31, 1956, for a consideration of $500 monthly to be paid in advance to the real estate agency of D. Marsiglia, Inc. In this lease it is provided that the lessee cannot rent or sub-let the premises to anyone without the written consent of the lessor. The lessee was granted an option to purchase the property, which is set out in the lease as follows, viz.:
“Lessee is hereby given the option of purchasing this property at any time during the period commencing August 1, 1953 and ending August 1, 1958 providing this property is under the present lease agreement at the time this option is exercised.”
It appears in this option that no provision is made therein as to the terms under which the option is to be exercised; however, on June 27, 1951 the lessor addressed a letter to the lessee calling his attention to the fact that they failed to put in the option the price to be paid for the property, stating that it is distinctly understood that the price is $55,000 cash and, if the option is exercised, 10% deposit must be made to the real [913]*913estate agent, D. Marsiglia, Inc. In this letter lessor granted the lessee the right to immediately exercise the option provided he did so not later than April 1, 1952. This right was extended on June 11, 1952 for a period of ninety days and it was provided that if it was not exercised within that time the terms and conditions of the option would revert back to the terms and conditions contained in the original lease, the sale price being $55,000.
The first suit brought by the plaintiff on September 13, 1954 was for specific performance wherein the plaintiff alleged:
“2.
“That on the dates set out in the documents numbered ‘Plaintiff I, II and III,’ which documents are attached hereto and made part hereof, the same as if copied in extenso, your petitioner and the defendant entered into an agreement whereby Louis D. Haeuser agreed to buy from Lucas J. Schiro, who agreed to sell, the following described property for the price and sum of Fifty-five Thousand Dollars:
“5000 Jefferson Highway, known as the Schiro property, measuring 237' front on the Jefferson Highway by a depth of 597'.”
“3.
“Petitioner avers that, pursuant to said agreement, he deposited $5,500.00, which is 10% of the purchase price, with Marsiglia Realty, Inc., the said real estate agent acting for and on behalf of the seller, Schiro. The said agent’s receipt, marked ‘Plaintiff IV’ is attached hereto and made part hereof.”
“4.
“Petitioner further avers that he has been ready, willing and able to carry out his part of the agreement by paying the balance of the purchase price, to-wit $49,500.00 and he has made demand upon the defendant herein to execute a formal act of sale of the said property, but without avail.”
The deposit of 10% of the purchase price was made on August 21, 1954 to Marsiglia. Schiro interposed an exception of no right or cause of action which was maintained by the district judge. The judge in his written opinion maintaining this exception stated:
“The only demand that plaintiff makes in this case is one for specific performance. It is based upon an alleged acceptance of an offer to sell contained in an option to purchase which was part of a lease between the parties. The option stated no price and no method of acceptance. In subsequent correspondence, defendant stated that the price was $55,000 cash. He also made other offers to sell in which he stated that if the option was exercised a 10% deposit, in cash, must be [915]*915made' with D. Marsiglia, Inc., agent representing the vendor. These offers expired without acceptance within the Stipulated periods. Subsequently plaintiff attempted to accept the option which was part of the lease by depositing 10% of the purchase price of $55,000 with D. Marsiglia, Inc., Agent.
“It is not necessary to decide whether this method of acceptance of the price of $55,000 cash became part of of the option stipulated in the lease. If it did become part of the option stipulated in the lease, the deposit was earnest money, and plaintiff is not entitled to specific performance. If these conditions did not become part of the option stipulated in the lease, then, of course, there was no acceptance of the option, and plaintiff is likewise not entitled to specific performance. Under no possible theory is plaintiff entitled to specific performance under the facts stated in the petition and supplemental petition. This is all I have decided in this case.
“The exception of no cause of action must be maintained and the suit must be dismissed. If plaintiff is entitled to any other kind of relief on the same state of facts, or to the same or any other relief on any other state of facts, that must be the basis of a new suit.”
The plaintiff brought a second suit seeking a declaratory judgment, which demand was rej ected by the lower court. The third suit was for specific performance which was non-suited and the present suit is for specific performance after a demand was made February 25, 1955 on Schiro to transfer the property to the plaintiff upon the payment of $55,000.
There was no provision in the option as to the amount to be paid for the property and the plaintiff must necessarily rely on the letters written by Schiro in November of 1951 and June of 1952 which were attached to the first specific performance suit filed by the plaintiff and alleged in plaintiff’s petition to be Plaintiff’s exhibits Nos. 2 and 3 and made part of the petition as if copied in extenso.
It is to be noted that in that suit the plaintiff averred that the agreement in the original lease-option required the deposit of 10% of the amount to be paid for the property. Now the plaintiff comes in seeking to establish the purchase price of the property, which is silent in the lease-option, by these very letters from Schiro. Plaintiff cannot come into this Court as he did in the first suit and say that a deposit was to be made under the agreement with Schiro and in a subsequent suit take an opposite position. He cannot be permitted to blow hot and cold with the courts.
It is to be noted that the first suit for specific performance was filed on Septem[917]*917■ber 13, 1954, long after the option given in the last letter of Schiro, dated June 11, 1952, giving the plaintiff an extension of ninety days within which to exercise the option, had expired, this being the same letter that the plaintiff must rely on for establishing the purchase price.
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PONDER, Justice.
The defendants are appealing from a judgment condemning them to specifically perform a contract for the transfer of real estate. This is the fourth suit that the plaintiff has brought under an option to sell contained in a lease contract entered into between him and the defendants’ husband and father, Lucas J. Schiro.
On January 2, 1951, Lucas J. Schiro leased to plaintiff the premises located at 5000 Jefferson Highway, known as the Schiro property, measuring 237 foot front on the Jefferson Highway by a depth of 597 foot, for a primary term of five years, commencing on February 1, 1951 and ending January 31, 1956, for a consideration of $500 monthly to be paid in advance to the real estate agency of D. Marsiglia, Inc. In this lease it is provided that the lessee cannot rent or sub-let the premises to anyone without the written consent of the lessor. The lessee was granted an option to purchase the property, which is set out in the lease as follows, viz.:
“Lessee is hereby given the option of purchasing this property at any time during the period commencing August 1, 1953 and ending August 1, 1958 providing this property is under the present lease agreement at the time this option is exercised.”
It appears in this option that no provision is made therein as to the terms under which the option is to be exercised; however, on June 27, 1951 the lessor addressed a letter to the lessee calling his attention to the fact that they failed to put in the option the price to be paid for the property, stating that it is distinctly understood that the price is $55,000 cash and, if the option is exercised, 10% deposit must be made to the real [913]*913estate agent, D. Marsiglia, Inc. In this letter lessor granted the lessee the right to immediately exercise the option provided he did so not later than April 1, 1952. This right was extended on June 11, 1952 for a period of ninety days and it was provided that if it was not exercised within that time the terms and conditions of the option would revert back to the terms and conditions contained in the original lease, the sale price being $55,000.
The first suit brought by the plaintiff on September 13, 1954 was for specific performance wherein the plaintiff alleged:
“2.
“That on the dates set out in the documents numbered ‘Plaintiff I, II and III,’ which documents are attached hereto and made part hereof, the same as if copied in extenso, your petitioner and the defendant entered into an agreement whereby Louis D. Haeuser agreed to buy from Lucas J. Schiro, who agreed to sell, the following described property for the price and sum of Fifty-five Thousand Dollars:
“5000 Jefferson Highway, known as the Schiro property, measuring 237' front on the Jefferson Highway by a depth of 597'.”
“3.
“Petitioner avers that, pursuant to said agreement, he deposited $5,500.00, which is 10% of the purchase price, with Marsiglia Realty, Inc., the said real estate agent acting for and on behalf of the seller, Schiro. The said agent’s receipt, marked ‘Plaintiff IV’ is attached hereto and made part hereof.”
“4.
“Petitioner further avers that he has been ready, willing and able to carry out his part of the agreement by paying the balance of the purchase price, to-wit $49,500.00 and he has made demand upon the defendant herein to execute a formal act of sale of the said property, but without avail.”
The deposit of 10% of the purchase price was made on August 21, 1954 to Marsiglia. Schiro interposed an exception of no right or cause of action which was maintained by the district judge. The judge in his written opinion maintaining this exception stated:
“The only demand that plaintiff makes in this case is one for specific performance. It is based upon an alleged acceptance of an offer to sell contained in an option to purchase which was part of a lease between the parties. The option stated no price and no method of acceptance. In subsequent correspondence, defendant stated that the price was $55,000 cash. He also made other offers to sell in which he stated that if the option was exercised a 10% deposit, in cash, must be [915]*915made' with D. Marsiglia, Inc., agent representing the vendor. These offers expired without acceptance within the Stipulated periods. Subsequently plaintiff attempted to accept the option which was part of the lease by depositing 10% of the purchase price of $55,000 with D. Marsiglia, Inc., Agent.
“It is not necessary to decide whether this method of acceptance of the price of $55,000 cash became part of of the option stipulated in the lease. If it did become part of the option stipulated in the lease, the deposit was earnest money, and plaintiff is not entitled to specific performance. If these conditions did not become part of the option stipulated in the lease, then, of course, there was no acceptance of the option, and plaintiff is likewise not entitled to specific performance. Under no possible theory is plaintiff entitled to specific performance under the facts stated in the petition and supplemental petition. This is all I have decided in this case.
“The exception of no cause of action must be maintained and the suit must be dismissed. If plaintiff is entitled to any other kind of relief on the same state of facts, or to the same or any other relief on any other state of facts, that must be the basis of a new suit.”
The plaintiff brought a second suit seeking a declaratory judgment, which demand was rej ected by the lower court. The third suit was for specific performance which was non-suited and the present suit is for specific performance after a demand was made February 25, 1955 on Schiro to transfer the property to the plaintiff upon the payment of $55,000.
There was no provision in the option as to the amount to be paid for the property and the plaintiff must necessarily rely on the letters written by Schiro in November of 1951 and June of 1952 which were attached to the first specific performance suit filed by the plaintiff and alleged in plaintiff’s petition to be Plaintiff’s exhibits Nos. 2 and 3 and made part of the petition as if copied in extenso.
It is to be noted that in that suit the plaintiff averred that the agreement in the original lease-option required the deposit of 10% of the amount to be paid for the property. Now the plaintiff comes in seeking to establish the purchase price of the property, which is silent in the lease-option, by these very letters from Schiro. Plaintiff cannot come into this Court as he did in the first suit and say that a deposit was to be made under the agreement with Schiro and in a subsequent suit take an opposite position. He cannot be permitted to blow hot and cold with the courts.
It is to be noted that the first suit for specific performance was filed on Septem[917]*917■ber 13, 1954, long after the option given in the last letter of Schiro, dated June 11, 1952, giving the plaintiff an extension of ninety days within which to exercise the option, had expired, this being the same letter that the plaintiff must rely on for establishing the purchase price. In other words, in the first suit the plaintiff was exercising his option contained in the original lease and could not have been exercising it under the letters written by Schiro because the time for the exercise of the option under those letters had expired approximately some two years.
Plaintiff interpreted the contract as requiring the deposit of 10%, the usual amount for earnest money, by his very act in depositing it with the real estate agent.
It was recognized by this Court in the case of Ducuy v. Falgoust, 228 La. 533, 83 So.2d 118 that where earnest money is given the parties have no right to demand specific performance, being relegated entirely to the forfeiture of the deposit or its double. It is established that under Article 2463 that all deposits are presumed to be earnest in the absence of a contrary intention. Collins v. Desmaret, 45 La.Ann. 108, 12 So. 121; Capo v. Bugdahl, 117 La. 992, 42 So. 478; Legier v. Braughn, 123 La. 463, 49 So. 22; Maloney v. Aschaffenburg, 143 La. 509, 78 So. 761; Terrebonne v. Cheramie, 151 La. 929, 92 So. 388; Bermuda Stock Farms Co. v. Gilliland Oil Co., 155 La. 949, 99 So. 708; Breaux v. Burkenstock, 165 La. 266, 115 So. 482; Buckman v. Stafford, Derbes & Roy, 167 La. 540, 119 So. 701; Livingston v. Southport Mill, 173 La. 120, 136 So. 289. Where earnest is given the parties have no right to demand specific performance. Terrebonne v. Cheramie, 151 La. 929, 92 So. 388 and Breaux v. Burkenstock, 165 La. 266, 115 So. 482.
Moreover, the plaintiff did not appeal from the judgment rendered in his first suit wherein he was denied specific per^ formance.
The evidence shows that the plaintiff sub-r let the premises to a corporation known as National Lumber and Demolishing without the knowledge or consent of Schiro or the defendants herein. The plaintiff takes the position that the stock of the corporation is owned by him and his family and that the subletting of the premises was not therefore in violation of his contract. We cannot approve the plaintiff’s position because the corporation is a separate entity and furthermore it might have the effect of limiting the plaintiff’s liability in event of breach of the contract or damages that might be occasioned to the property through the negligence of the plaintiff. The lease provided that it could not be sublet without the written consent of the lessor and certainly no such written consent has been given.
For the reasons assigned, the judgment of the lower court is reversed and set aside and plaintiff’s suit is dismissed at his, cost..
[919]*919FOURNET, C. J., concurs.
' HAMITER, HAWTHORNE and SIMON, JTJ., concur in the decree.