Flournoy v. Miller

BREAUX, C. J. Plaintiff brought this suit to compel specific performance on the part of defendant of an agreement with certain conditions. As it is not lengthy, the principal part of the agreement is inserted here: ' “I offer you for immediate acceptance the following described property for the consideration of twenty five hundred and fifty dollars cash to be paid when the deed is passed, as soon as the title can be investigated by Hudson, Potts and Bernstein, not later than the 5th of this month.” In the instrument in question follows a description of the property. The offer to sell was signed by defendant, the written acceptance by plaintiff. At the appointed time, viz., the 5th day of February, 1904, the defendant, Miller, repaired to the office of the clerk of the court, and there met the plaintiff, Flournoy, who [1029] handed defendant a letter from the law firm named in the instrument, stating that there were mortgages on the property and a defect in the title by reason of the fact that it was not certain whether the property was owned by the community which had been dissolved by the death of the wife of the vendor, Miller, appellee here, or by the said vendor personally. No deed was executed on February 5th, when the parties met in the clerk’s office, and no offer was made by plaintiff to pay the price, nor did either propose to pass the sale. On the 15th day of February defendant, Miller, wrote to plaintiff that: “As the time limited for you to have the title looked up for the land I agreed to let you have, has been passed some 10 or 12 days now, and as you did not take the land at the time appointed or agreed to and as you think there may be some little defect in the title, I have decided not to sell the land.” The defendant added that as he had leased the land it added to the difficulty of completing a sale. These are the facts upon which plaintiff grounded his suit. In his petition he averred that he was entitled to specific performance or damages. Defendant excepted on the ground that plaintiff had no cause of action; further, that plaintiff’s demands were exclusive one of the other, and that plaintiff should be ordered to elect upon which particular cause of action he would proceed. The exception was overruled, and the defendant thereafter answered at some length, setting up, inter alia, that “the stipulations and conditions embodied in said alleged promise of sale were never complied with by the plaintiff nor his attorneys; that the said stipulations and conditions never happened within the time limited, and the said alleged promise of sale never vested the plaintiff with any interest in said property, or any right to demand title thereto.” The district court rendered judgment in favor of defendant and appellee, from which plaintiff appeals. We do not stop to consider the exception of defendant at any length. It was overruled by the district judge, and, we think, properly overruled. The propositions were alleged by plaintiff in the alternative, and left no doubt that it was the purpose to ask for specific performance or damages, as.elearly laid down both in the body of plaintiff’s petition and in the prayer. The demands were not inconsistent, contradictory, or repugnant one to the other. If the court decided that petitioner was not entitled to specific performance, then he (petitioner) invoked the right to damages for breaking an agreement which he (plaintiff) assumed had been broken by defendant. Alternative demands are sometimes made. They do not give rise to a right to a dismissal of the petition when made as in this case, nor to the right of obtaining an order from the •court to compel the defendant to elect.