Broussard v. Sudrique

Mathews, J., delivered the opinion of the court. This suit is brought to recover the price of three arpens of land, fronting .on the bayou Teche, with the depth of forty. The price stipulated to be paid, as appears by the contract of sale, is one thousand five hundred dollars, which was payable by instalments, &c. The act of sale is in authentic form, and its execution by the parties is not denied. But the defendant seeks to avoid the contract on the ground pleaded in his answer, viz: simulation, fraud, and error falling on the [351] substance of the thing bought, and in the motive which ° . induced him to buy, which was well known to the seller (the plaintiff), at the time the contract was4made. •The defendant offered written evidence and testimonial proof, to establish the allegations contained in his answer. Both were rejected by the court below as inadmissible, on account of their tendency to prove facts contrary to the written contract of sale; and judgement being rendered for the plaintiff, the defendant appealed. The only question, arising in the present state of the cause, is that which grows out of the bill of exceptions, taken by the counsel for the appellant, to the opinion of the judge a quo, by which he rejected the testimony offered on the part of his client. This question is really not without difficulties; On the side of the plaintiff we find an act of sale, made before a notary public in due form, in which the land sold is designated, the price fixed, and terms of payment established with precision. This solemn act the defendant claims to have annulled, on the ground of simulation, fraud and error. If either of these can be established by evidence legally admissible, the contract ought to be anulled, as wanting an essential requisite in all such agreements, i. e., the consent of the parties. As to the allegation of simulation, that fact, according to our laws and the decisions of this court, admits of no other proof between the parties to a contract, except by a counter letter or something equivalent thereto. But fraud and error are generally susceptible of proof in no other way than by witnesses; for it can never be presumed that men do reduce to writing, evidences of their frauds or errors, particularly when the latter are gross, and partake of fraud. In the present case, the allegations of fraud and error are so closely connected by the facts stated in the answer, that it is difficult to separate them, in relation to the proof by which they are to be established. The defendant states that the land described in the act of sale is not that which he intended to purchase; and that the motive which induced him to buy would not and [352] could not have influenced him to take any other land than that which he had in view at the time of the contract, and this to the advantage of the seller. Where a purchaser of a tract of land, when sued for the price, alleges fraud and error of fact and law, in the contract of sale, by stating his sole motive in the purchase was to benefit the vendor, by enabling him andetleg5S°itle against a claim m warranty, on account of tásame > and d?at the vendor knew, at the pechase could BOt observe his purpose, not being the land from non051*6 took mgs, parole evidence will be admitted to ror^nd^fraud alleged m avoidance oí the contract. [352] We find a distinction made in the Louisiana Code, on the subject of errors, between those that fall on the substance of the thing bought and those which relate to the motives of the parties in making the contract. The examples given of the former kind of errors, relate to cases where the form of the thing may be the same, but the substance differs. L. Code, arts. 1835 — 8. In a case like the present, when error is alleged in the sale of a certain tract of land, designated by locality and contiguous lands, and the purchaser could show no motive which probably caused him to have in contemplation a different tract from that actually sold to him, and by him formally accepted in a written contract, perhaps he would not be authorized by law to prove facts by oral testimony contrary to those contained in the written contract, unless he could show the vendor knew at the time that he was deceiving such purchaser as to the very thing itself sold. Although there may be no difference in land, speaking in relation to the substance of the thing, yet when land is divided by a government into innumerable tracts, and owned by different individuals, and a purchaser intends to buy a certain tract from an owner of several, and the latter sells to him one altogether distinct from that which he intended to buy, such a contract would certainly want the consent of one of the parties in relation to the entire thing, both as to substance and incidents, form, and every thing else. But whether such error, without fraud on the part of a seller, could be established in favor of the buyer by testimonial proof, need not be settled in the case now under consideration. The defendant alleges and offered to prove, that he bought the land offered for sale by the plaintiff, with the sole view and motive to enable him to give a good and legal title to persons who were pursuing him in warranty, or about to commence such pursuit, on the ground of eviction from this land intended to be bought, caused by the father of the plaintiff a [353] purchaser from the ancestor of the defendant’s wife; and that this, the sole motive of the purchaser, was known to the vendor at the time; and, moreover, it is alleged on the part of the defendant, that the land actually bought did not and could not subserve the purposes for which alone the purchase was made; not being that from which the eviction took place. Under these pleadings, we think the court below erred m rejecting the evidence and witnesses offered. L. Code, 1818, et sequentes. 1 In the case of Berard’s heirs vs. Berard, the testimony to prove the error alleged, was admitted without objection or exception. That case has, therefore, no strong bearing on r 7 7 & ° the present. ° . ■ It is, therefore, ordered, adjudged, and decreed, that the judgement of the District Court be avoided, reversed, and annulled; and it is further ordered, adjudged, and decreed, - - that the cause be remanded to said court, to be tried de novo, with instructions to the judge a quo to admit written or testimonial proof of the fraud and error alleged by the defendant • in his answer. The appellee to pay the costs of this appeal,