De Soto Building Co. v. Kohnstamm

— 56 — opiaioa. By his Honor John St. Paul. This la a auit for rent; the iasne is, "Was there erer a Completed contract between the parties?" Defendant addressed and submitted to one "Deo Fallman" an offer to rent certain premises for a certain time and for a certain mon-t;hXy rental; which offer oontained this clause; "It is understood and agreed that, if this offer is aooepted, lease on your form and rent notes will be immediately signed; further, that the right that either party would hare to withdraw from this agreement at any time before the actual signing of the lease and rent notes is waired, renounced and abandoned; and that the contrast of lease becomes final, irrevocable and executory by acceptance of this proposition." At the bottom of the offer Feliman wrote; "Aooepted; Deo Fellman, President De Soto Building Co;" the said Company being a I corporation and being the owner of the premises. I I Assuming for the moment, that Fellman was authorised to aot for the Corporation, ‘we think the offer and its aooeptanoe constitute! a oompleted contract between the parties. The case does not oome within the oircumstances of Laroussini vs Werlein, 52 An 426 (followed ## in Woodville vs Kantrowits, 115 La. 810) where it is announced, (somewhat too broadly however) that a verbal or written agreement is not binding if it oontain in itself an agreement to execute a subsequent and more formal written agreement on the same aubjeot. Of course that dootrine is absolutely true when the parties have left something still in abeyance, and to be agreed upon at the time of oonfeoting the later Instrument; because in that oase there has been as yet no oomplete aooord between the parties, who remain still at liberty to disagree about those phases of the matter whieh have not yet been oonoluded. — 57 — But on principio it would seen otherwise where the parties haws agreed as to all the tema of their oontraot, and there remains nothing now to he done hut the purely -physical and quasl-neohandnleal, aet of putting those terns in written fom; and so our Supreme Court has held la Kaplan vs Whitworth, 116 La 337. See also 9 Cyc 282, (Bote 99). ~ And to put the matter at rest,(so far as we can), we may now cay that in the Vferleln oaae where the agreement was Terhal and informal, the eourt found as a faot. that owing to tho nature and magnitude of the transaction inrolyed, the oourse of proceeding hetwee* the parties on former oeoasions, and the evident belief of the plaintiff that he was not secure in hie rights without the written oontraot, it was therefore reasonable to presume that the partiee had no intention to hind themaelTes otherwise than by a written oontraot. dad the Woodvlllo oase simply follows the broad doctrine of the Werltln oaae, without attending to the fitter and more important foatura of that oasa. But the doetrlne of the Werlein oasa has been modified, as wo hare said, in the Xaplan oasa; and proporly so, we think. Bor it is perfectly olear that the agreement to ezeoute a sew instrument is often purely superfluous in so far as the oontraot itaelf is oonoarned; slnoe -"the oontraot must not be confounded with the Instrument in writing by which it is witnessed." C. C. 1762; as whsre the parties hare signed one original instrument and agree therein that a duplioate will thereafter be signed; or where the parties when about to sign thsiT agreement perceive that it contains erasures and interlineations or has been ###‡ soiled, and add therein a oíanse that s cleai^ oopy shall he made, whioh they agree to sign and substitute for the first. In both these oases it is manifest that no further mental aet is required of the parties, but only the pnrely uhyaloal act of transcribing and signing. But since a contraot is the result of a mental act, "a mere operation of the mind"(C. C. 1797), it follows necessarily that the oontraot is the result of the first aot of the — 58 — parties, whilst the second operation produces only "the instrument in writing by whloh it is witnessed." It is also quite true that if it he the intention of the parties that they should not be bound except by the subsequent written agreement (as the court founa the fact to be in the Werlein case) then of course they are not bound exoept when that act has been signed. hut the reason of this is not because the law so holds, but beoause the parties hare so agreed; and this is oelariy pointed out ii by Pothier in his work on Obligations. Section Ü. It is also true that it was the positire Roman Law, that where the parties had bargained rerbally but agreed to reduoe their oontraot to writing, the parties were not bound until the writing was completed but this applied only to sales. and was purely statutory, being in. •ed an inoration introduced for the first time by Justinian ~K-himself, in his Constitution of June 1st 528, (Codex 4.21. 17) and incorporated by Tribonian in the Institutes ({ J. 4. 23 (24) pr. )) But as erery lawyer knows, the Roman Law consists of two wholly distinct dirisions or classes of Xpw#j l. The ffew Law, found in the Codex, being the positire enactments or constitutions of the MOHiféM- Emperoxa and 2. The Old Law, found in the Pandects or Digest, founded on the Jus gentium, or natural Law, as expounded by those Ancient Sages, the Juriaoonsults, who hare been the wonder of all learned men, and of whom Leibnitz has said, that their reasoning was as exact as the demonstrations of Mathematicians. This latter law, founded on principles that are eternal, always has been and always will be Law throughout the whole world; and is this =• still the Law of #£# State. Reynolds vs Swain, 13 La 198. But the former, purely arbitrary in oharaoter, is no longer law in this State, haring been abrogated by the statute of 1828 (Rer. Statutes, Section 2166). Reynolds vs Swain, 13 La 198. — 59 — Again, the Article of oar CItII Code (2463) relative to the giving of earnest in promises of sale, is taken verbatum from the very paragraph of the Institutes containing the aforesaid lav of Justinian. But the compilers of our code, who were perfectly familiar with the Homan law, adopted that part of the paragraph relating to earnest (also an innovation on the Old haw), yet rejected the rest; this clearly intending to exclude- that portion from our law. On the contrary, they wrote into our code Just above the article about earnest money, the very opposite of Juatinlana' law, to wit, that the promise of sale would be binding.(C. C. 2462). therefore We are^satisfied that unless it be found as a matter of fact. that the parties intended not to be bound until the subse quent aot be signed their first agreement binds them, if it appear to leave nothing else to be concluded by them except the physical aot of drawing up the agreement as made and the signing of the same. The eases in which the doctrine of the Werlein oase was first laid down t.e. ( 3 U. 349- I H. 3. 422) were decided under the Spanish^Roman Lawji, then in forwe but should not have been followed after the aot of 1B2« (Se P. 6.6.6) Wow in the case before us it is quite clear that the parties did not Intend that they should be bound only if and when the formal aot of lease was signed; but An the contrary they said in language too plain to be mistaken, that their intention was to be bound then and there. And sinoe, as we have said, the law does not say otherwise, and does not forbid it, it is clear that their will is the law between them ( C. C. II, 1764; Kaplan vs Whitworth, 116 La 337.) II. In what preoedes we have ^assumed that the parties had agreed on all the provisions whioh the lease was to oontain, and had only to perform the physical aot of reducing the same to writing and signing it. We assumed this because, as we have said, the offer reoited that, "lease on your (Peliman1 a) form and rent notes will be drawn up and immediately signed." See 9 Cyo 682 — 60 — Sow the «trítonos ahown that Pellman had a regular printed form of loas* and ront notas oontalalng blanks to be filled In with dates, nanos, amount of rent, and tosoriptlon of tha premisetu Copies of suoh lease and rent notes are In the reoerd, and a aero Inspection of then shows that, with the offer and aeeeptanoe before hia, any person with enough education to read and write oould hare filled them out in a few Minutes so as to represent exaetly what the parties had agreed apon, Kenoe there remained to be done only the physioal aot of filling out the fora (whioh might hi done even by a third person) and the physioal aot of signing, -j III The defendant oídlas that the oontents of the offer he made not wero^read by hia, and were misrepresented; but this Is abundantly disproved; exoept that it Is not pretended that he read the form of lease and rant notes which he agreed to sign. But as the offer whioh he did read, refers In plain terms te that fora, it was his plaoe to examine It before agreeing to sign It. lie failure to do so oannot now be urged. See Bagnarls vs Odio T4T1 and authorities there oited-alao 120 La 901, 921; 121 La 514, 515, 516 and Corpus Juris p. STO- Vote £6. IT. It Is further urged that (as it now appears) the lease whioh was presented for his signature, had a rider attaohed thereto oontalalng other oonditlona not ggreed to. Of course defendant was not required by his offer to sign any lease but that whioh he had agreed to, and had he objected on those grounds, and plaintiff had still Insisted, that would have been another matter; indeed he- might then have dons# just what plaintiff Is doing now, vis, insisted that his rights were fixed by the offer and Its acceptance; and have had those rights reoegmlted bjr the Court But defendant did not objeot to the lease presented to him en those grounds; he simply deellned to sign any lease whatever; in ptint of faot he doss not appear to have known of suoh a rider uatll — 61 — T. TRO plaintiff allegas In its petition, paragraph 2, that defendant’s offer was "duly accepted by petitioner, through Its duly authorized president Leo fellnan." Defendant In hla answer to that paragraph "admits signing a document z x z hut denied that said dooument was of the purport or had the effect as stated In said petition." Of course the allegation that plaintiff's president was #f# duly authorized, was a material and neoessary affegation of faot to support a eause of action; and as the abowe answer denies no allegation of faot In said paragraph contained, but merely dehies its proposition of law, it follows that the matters of faot contained therein must be ttM#j|"deened to be admitted." Act 200 of 1914, Seo I. It was therefore unnecessary to prove the authorization of the president; and henoe we are not called upon to ezamine the correctness of a ruling of the lower court of whioh the transcript oontalns only the following bare reoital; "By Ur. Suthon (to Ur. reliman) Q. Were you authorized by the Be Soto Building Co. to sign this acceptance! By Ur. Banziger; Objected to. By the Court; Objection sustained." Of course a ruling in this shape cannot be reviewed ezcept for the purpose of calling up the stenographic notes (If any) showing the grounds of objection, since an objection without grounds is of course without merit. (Act 61 of 1908-Standard Distilling Co vs Aronson, 9 Orleans App. 323). But as the evidence was unnecessary no such action is needed here. (Lewis vs R. R. Co, 7267; Rhea vs Motor Co, 7144; Miller vs Lafontaine, 8 Orleans App. 162). TI. It is contended that the offer having been addressed to Leo Feliman, and not to Leo Feliman, Agent, Its acceptance by the plaintiff oreated no obligation between it and defendant, and we are referred to a number of authorities supporting the well known diotrlne that an agent contracting In his own name without disclosing his prinoipaf, renders himself personally liable to the other party. — 62 — That dootrine means nothing more than this; that under suoh circumstances the other party, on disoorerlng the fact of agency, may hold either the agent or his principal at his option. (Johnson vs Bisso Tow Boat Co. 7279 Ct App. 9 Cyc 387 Note 40. But It has no application hers except to confirm the complement to the proposition, viz; that if It create suoh an obligation between the other party and the undisclosed principal as to entitle the former to hold the latter, It must neoessarily he suoh an obligation as to entitle the principal to oome forward and hold the other party; slnoe a contract binds both parties or neither. And hence we find the rule this stated in Corpus Juris (Terbo a Agency) riz; "It Is well established general rule that where an agent on behalf of his principal enters into a simple contract, as though made for himself, and the existence of the principal la not disclosed, the oontraot Inures to the benefit of the prlnolpal, who may appear and hold the other party to the contraot made by the agent." 2 Corpus Juris 878» This quotation is supported by oltationa from almost every state In the Union, and there are no oltationa to the contrary. There is no citation from this Stfcte, and we know of no authority directly In point, but the correctness of the principle Is so obvious that there can be no doubt of Its acceptance here when oooaalon arises, as It does now. The trial judge found the oaae to be with plaintiff, and his finding appears to us correot. Judgment Affirmed. New Orleans La, November 24th, 1919.