Kirkpatrick v. M'Millen

14 La. 497

• Court: Supreme Court of Louisiana
• Decided: March 15, 1840
• Status: Published

Opinion

Bullard, J.,

delivered the opinion of the court:

This is an action by the payee against the maker .and endorsers of a promissory note. The consideration appears to have been certain town lots purchased from the plaintiff by the makers of the note, who, in the mean time, sold the lots to Sewell and Clannon, who assumed to pay the notes sued on. The second purchasers were made parties as guarantors,, and the original defendants claim a judgment over against them in solido, according to their contract. Code of Practice, article 379.

Where several lots are sold in block, designated by numbers, in a particular square, according to a plan, although the number of feet contained in. each is specified, it is a sale per aversionem. The reference to the plan and boundaries of the streets must control the measurement of the lots.

The warrantors set up as a defence a deficiency in the measurement of the lots, and claim a diminution of price. But the court being of opinion that the sale was per aversionem, gave judgment against the original defendan ts for the amount of the note, and a judgment over against the warrantors for the same amount, and all the defendants haye appealed.

The lots which formed the object of the sale are described substantially as follows : “ No. 5 in square No. 32, situate in the faubourg St. Mary, measuring sixty feet front on St. Paul-street, by one hundred and twenty feet, all French measure.” The one half of another lot of ground “ No. 6, situate in the same square and faubourg, being the southern half thereof, measuring thirty feet front on St. Paul-street, by one hundred and twenty feet, French measure.” Two other certain lots of ground “No. 9 and 10, situate in the same square and faubourg, and lying in the rear of lots No. 5 and 6, measuring sixty feet front on Girod-street, by one hundred and twenty deep, French measure.” “ The whole as per plan made by John Gravier, and deposited in the first judicial district court of this state.”

Two of the lots are described as frontingon Girod-street, and the others on St. Paul. They are, therefore, represented as bounded by those two streets, and as lots designated on a particular plan of the faubourg. If the description of each lot were taken by itself, it would not, perhaps, come within the definition of a sale per aversionem. It is shown that, in point of fact, the square is less than two hundred and forty feet from St. Paul to Girod streets ; and, consequently, there is a deficiency in the depth of each lot. But the whole of the lots were sold in block, designated by numbers, in a particular square, according to the plan of the faubourg. The reference to the plan and boundaries of streets must control the statement of the measurement of the lots. This caséis analogous to that of Milligan vs. Minnis, 12 Louisiana Reports, and presents the converse of the proposition sanctioned by the court in the case of Cuny vs. Archinard, 5 Martin, N. S., 243. Notwithstanding the deficiency in the superficial .quantity, the purchaser cannot, therefore, claim a diminution of price.

The judgment of the District Court is, therefore, affirmed J ° ? With COSfS.