Andrew Development Corp. v. West Esplanade Corp.
| Decision Date | 20 June 1977 |
| Docket Number | No. 59125,59125 |
| Citation | 347 So.2d 210 |
| Parties | ANDREW DEVELOPMENT CORP. and Preston Phillips, d/b/a Preston Phillips Real Estate Co. v. WEST ESPLANADE CORPORATION. |
| Court | Louisiana Supreme Court |
Philippi P. St. Pee, Francipane, Regan & St. Pee, Metairie, for defendant-respondent.
M. Arnaud Pilie, Pilie, Pilie & Landry, New Orleans, for plaintiff-applicant.
Andrew Development Corporation and Preston Phillips, d/b/a Preston Phillips Real Estate Company, real estate agents, instituted this suit against West Esplanade Corporation for the sum of $28,000 claimed to be due them under a written "Agreement to Purchase or Sell" real estate entered into between West Esplanade Corporation as seller and Preston Phillips Development Company, Inc. as purchaser. Another suit entitled Preston Phillips Development Company, Inc. v. West Esplanade Corporation and Dr. William E. Griffith was consolidated with the present suit for trial. Defendants West Esplanade Corporation and Dr. William E. Griffith moved for a summary judgment. The district court granted summary judgment in their favor on the grounds that parol evidence was not admissible to prove a breach of a contract to sell immovable property and that the commission had not been earned by the agents since the mortgage loan had not been secured in accordance with the agreement. The judgment of the district court dismissed both of the consolidated suits. Only plaintiff Andrew Development Corporation took an appeal. 1 The court of appeal affirmed. 2 Upon application of Andrew Development Corporation, we granted certiorari to review the correctness of this decision. 3
Prior to June 3, 1975, West Esplanade Corporation, through its president, Dr. William E. Griffith, requested Andrew Development Corporation, a licensed real estate broker, to find a purchaser for certain immovable property which it owned in Jefferson Parish for the price of $650,000. Andrew located a purchaser, Preston Phillips Development Company, Inc., who executed a written agreement to purchase said property for $650,000 on June 3, 1975. The offer to purchase was accepted by West Esplanade on June 8, 1975. The act of sale was to be passed prior to September 3, 1975. The agreement provided that the sale was conditioned upon the ability of the purchaser to obtain a loan for a certain amount under specified conditions. It further stated that "should purchaser, seller or agent be unable to obtain the loan stipulated above within 60 days from acceptance hereof, the contract shall then become null and void." The agreement also provided for an agent's commission of $28,000 to be paid by the seller, which commission was earned by the agent "when this agreement is signed by both parties and when the mortgage loan, if any, has been secured." It was stipulated that Preston Phillips Real Estate Company was to receive $9,330 and Andrew Development Corporation $18,670 of the commission. Finally, the agreement contained a clause which set forth that "either party hereto who fails, for any reason whatsoever, to comply with the terms of this offer, if accepted, is obligated and agrees to pay the agent's commission and all reasonable attorney's fees and costs incurred by the other party, and/or agent in enforcing their respective rights." The act of sale was not passed prior to the expiration date of the agreement (September 3, 1975) nor were any of the parties placed in default.
In its petition, Andrew alleged that, prior to the expiration of the sixty-day period from the acceptance of the agreement to purchase, Dr. Griffith, acting on behalf of West Esplanade, indicated to both purchaser and agent that he did not intend to go through with the sale. Because of this refusal to comply with its obligation to sell, plaintiff alleged that, although purchaser was able to obtain the loan provided in the contract, it elected not to secure the loan commitment since to do so would have required the payment of a $5,000 non-refundable commitment fee. Andrew further alleged that defendant's refusal to sell constituted an active breach of the contract which relieved both Andrew (agent) and purchaser of their obligations to further perform under the agreement. As a result, West Esplanade was liable to Andrew for its commission under the terms of the contract. In answer to plaintiff's petition, West Esplanade denied that it had refused to perform its obligation to sell and averred that the commission was not due plaintiff since the mortgage loan had not been secured, a prerequisite to the earning of the commission under the terms of the contract.
In support of its motion for summary judgment, West Esplanade offered the affidavit of Dr. Griffith in which he denied that West Esplanade had ever actively breached the agreement by refusing to proceed with the sale or that it had ever been put in default by Andrew prior to the expiration of the agreement (September 3, 1975). In opposition to West Esplanade's motion for summary judgment, Andrew filed the affidavits of Andrew L. Roy, its president, and Preston Phillips, president of Preston Phillips Development Company, Inc. and owner of Preston Phillips Real Estate Company, in which they stated that, prior to the expiration of the sixty days from the date the purchase agreement was accepted, Dr. Griffith told them that West Esplanade did not intend to proceed with the sale.
The sole issue presented for our review is whether, based on the pleadings, affidavits, answers to interrogatories and other evidence filed by the parties pursuant to defendant West Esplanade Corporation's motion for summary judgment, a genuine issue of material fact was presented as to whether defendant actively breached the agreement to purchase, thereby relieving plaintiff (Andrew Development Corporation) and the purchaser of their obligation to perform under the contract and plaintiff of the duty of putting defendant in default as a prerequisite to recovery of its commission.
La.Civil Code art. 1931 provides:
A contract may be violated, either actively by doing something inconsistent with the obligation...
To continue reading
Request your trial
-
TMJ Grp. LLC v. IMCMV Holdings Inc.
... ... , Jr., Abigayle Clary McDowell Farris, Andrew D. Mendez, Walter Frederick Metzinger, III, ... Ralston Purina Corp. , the investments are exempt from registration ... and that TMJ Plaintiffs put development of the New Orleans Restaurant on hold "many ... 2002). 210 Fla. Stat. Ann. 605.04091 (West). 211 Id. 212 Id. 213 Rec. Doc. 465 at 31 ... v. West Esplanade Corp. , 347 So.2d 210, 21213 (La. 1977) ; ... ...
-
Louisiana Power & Light v. United Gas Pipe Line
... ... purchaser of gas in places like Oklahoma and West Texas, and sometimes bought gas in places as far ... Ballard & Cordell Corp., 418 So.2d 1334 (La.1982); Schwarz, supra, at ... LSA—C.C. art. 1932; Andrew Development Corp. v. West Esplanade Corp., 347 ... ...
-
CAM Logistics, LLC v. Pratt Indus.
...Louisiana courts have long “recognized that an anticipatory breach of contract is actionable.” Andrew Dev. Corp. v. W. Esplanade Corp., 347 So.2d 210, 212 (La. 1977); see also La. Civ. Code arts. 1911-1913. The doctrine “applies when an obligor announces he will not perform an obligation wh......
-
Latter & Blum, Inc. v. Ditta
... ... 1980) ; Langford Land Co. v. Dietzgen Corp. , 352 So.2d 386, 388389 (La. App. 4 Cir. 1977) ... 4 See Andrew Development Corp. v. West Esplanade Corp., 347 ... ...