Stewart v. Paulding

Mathews, J., delivered the opinion of the court. This action is founded on the 2589th article of the Louisiana Code, found in the chapter which treats of sales by auction, &c. The suit is brought to recover the difference in the price of immovable property, which had been adjudicated [154] • to the defendant, who, as alleged, is the proprietor, refused : to comply with the terms of sale; and in consequence of this refusal, the auctioneer sold the property a second time at his risk, for a price less than was obtained at the first adjudication. The defendant suffered judgment to be entered by default, which was afterwards made final, on hearing of testimony in the cause. From this judgment he appealed, and obtained a statement of facts, made out by the judge a quo, the parties having refused to agree to one. Under this statement of facts, it is contended on the part of the appellant, that the plaintiff failed to show any cause of action, not having produced any evidence to establish that'the defendant was legally put in default, in mora, in respect to the performance of his part of the contract. The first time we were required to investigate this subject was in the case of Erwin vs. Fenwick, to be found in 6 Mar. N. S. p. 229. We there expressed an opinion that the rules relating to the steps required to be taken in order to place a debtor in mora, considered in regard to some of these provisions, are entirely arbitrary; but being imperative must be obeyed by those who administer justice under the law. The sale to the defendant implied a commutative contract; it was on credit, and the vendor was bound to give his notes for the payment of the price, and the plaintiff to convey to him the property sold, which being an immovable, required a written act of sale, according to the art. 1907 of the La. Code. In commutative contracts when the reciprocal obligations are to be performed at the same time, or the one immediately after the other, the party who wishes to put the other in default, must, at the time and place expressed in or implied by the agreement, offer to perform as the contract requires, that, which on his part, was to be performed, or the opposite party will not be legally put in default. The article 2588 states, that if the object adjudged by auction, be one for which the law requires that the act of sale shall be made in writing, the purchaser may retain the price, and [155] the seller the possession of the thing, until the act be passed, &c. &c. In an action by thevendor against the vendee of real estate, adjudicated at public auction,the plaintiff’s request to the defendant that lie •would comply with the terms of the sale, and the defendant’s refusal to do so, is insufficient to put the latter in default. The statement of facts in the present case, does not show that any act of sale, in writing, of the property, was passed or offered to be passed, by the seller. The only testimony adduced on this matter, is that of the auctioneer, who testified that the defendant, when requested by him, refused to comply with the terms of the sale. But this was not sufficient to put him in default, according to the 1907th art. of the Code above cited, for the plaintiff did not offer to perform that which on his part was to be performed, viz: to make the deed of conveyance. This case does not differ in any material circumstance from that cited from 6 JV. S. See p. 235. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be avoided, reversed and annulled; and it is further ordered, that judgment be here entered against the plaintiff and appellee, as in case of non-suit, with costs in both courts.