Bland v. Conner

• Decision Date: 04 March 1946
• Docket Number: 6893.
• Citation: 25 So.2d 815
• Court: Court of Appeal of Louisiana — District of US
• Parties: BLAND et ux. v. CONNER et ux.

25 So.2d 815

BLAND et ux. v. CONNER et ux.

No. 6893.

Court of Appeals of Louisiana, Second Circuit

March 4, 1946

Rehearing Denied March 27, 1946.

Certiorari Denied April 22, 1946.

W B. Massey, of Shreveport, for appellant.

Wilkinson Lewis & Wilkinson, of Shreveport, for appellee.

HARDY, Judge.

This is a suit in which plaintiff, G. H. Bland, who was later joined as a party plaintiff by his wife, sued the defendants, husband and wife, for specific performance of an alleged agreement of sale of certain real estate in the City of Shreveport, or, in the alternative, for judgment in the sum of $1,000 representing double the earnest money paid over by plaintiffs at the time of execution of the alleged agreement. The demand for specific performance was dismissed, on plaintiff's motion, before trial below. After trial there was judgment in favor of defendants, rejecting the demands of plaintiffs from which judgment plaintiffs appeal.

During the course of the proceedings below, plaintiffs obtained writs of attachment on the property of the defendants on the ground that the latter had become nonresidents of the State. These writs of attachment were released upon the deposit by plaintiffs of the sum of $1,250, in cash, in the hands of J. Howell Flournoy, Sheriff of Caddo Parish, Louisiana.

Before this Court plaintiffs claim they are entitled to judgment in the sum of $1,000, or, in any event, to judgment decreeing the return of the $500 actually paid over.

Attached to plaintiffs' original petition is the original agreement entered into between plaintiffs and defendants, which reads as follows:

'Contract of Sale and Receipt of Earnest Money

'State of Louisiana

'Parish of Caddo

'By This Agreement and Contract

'The purchase price is $15,000.00 payable as follows $15,000.00 Cash or notes per agreement to be reached later, of which purchaser has given their personal check, #___ of January 31, 1945, on Bank _____, for $500.00 earnest money to hold property until April 1, 1945 and if additional time is needed by Purchaser another $100.00 earnest money will be paid to hold the property until June 1, 1945. Any and all Earnest Money to be returned to purchaser if Title is not clear. If Title is clear to apply on purchase price per one of above dates.

'The above property referred to is a Duplex and 4 car Garage Apartment located on a 60 foot lot as follows: E 58' of Lot 9 and W 2' of Lot 10--Block 'B' Thornhill Subdivision, Shreveport, Louisiana (936, 936 1/2 & 938 Dalzell).'

Another agreement in writing, signed on February 17, 1945, by plaintiff, G. H. Bland and defendant, A. P. Conner, is attached to the petition, which agreement reads as follows:

'$ 4,000 1st Haughton

1,500 2nd Sport

--------

5,500

500 Earnest Money

9,000 Home Federal Loan

--------

'15,000

'Payments on the $5500-- 1st & 2nd

1st payment

Int & Bal on Prin on Apr. 1st

mortgage/ of $50.00 per month/--Interest at

5%--Total payable on or before 12 mo. from date.

'The above general terms accepted.'

Plaintiffs' petition alleged that the original agreement of January 31, 1945, left open for subsequent settlement the question of agreement upon terms which were set forth in the second agreement; that defendants refused to accept the provisions set forth in the second agreement, which refusal constituted a default on the part of defendants and thereupon vested plaintiffs with the right either to specific performance or to return of double the earnest money deposited at the time of the execution of the first agreement.

It is obvious that the second agreement, as set forth above, was not binding upon the defendant Marie Louise Jarma Conner, since she was not a party thereto, and, since Mrs. Conner was the owner of the property, which was not under the community existing between herself and her husband, plaintiffs would have no right either to specific performance or to the forfeit of double the amount of earnest money resulting from a failure of the defendant Mrs. Conner to carry through this agreement.

As we view the matter, the case must be resolved by a determination of the meaning of the so-called agreement of January 31, 1945. There is no question but that all the parties to this instrument intended it to be a promise to sell, accompanied by the giving of earnest.

The essential requirements of a valid promise to sell which would entitle either party to enforce specific performance are clearly set forth in Article 2462 of the Civil Code:

'A promise to sell, when there exists a reciprocal consent of both parties as to the thing, the price and terms, and which, if it relates to immovables, is in writing, so far amounts to a sale, as to give either party the right to enforce specific performance of same.'

Examination of the instrument in question discloses the fact that it does not comply with the requirements laid down by the codal provision. While there is evidenced in the instrument a mutual understanding of the parties as to thething and the price, there was no provision as to the terms of payment of the price, and, in fact, the instrument itself declared that the terms were to be left in abeyance pending agreement thereupon by the parties at a later date.

The record in this case abundantly bears out the fact that the parties never agreed upon mutually satisfactory terms. It appears that negotiations on both sides were left in the hands of the husbands, Bland and Conner, by their respective wives. This fact has no bearing upon the liability of the defendant Mrs. Conner, no allegation of agency of the husband having been made by plaintiffs, but it is vitally important in substantiating the proposition that all parties were negotiating in the attempt to reach mutually satisfactory terms for the payment of the purchase price, which would permit the consummation of what they regarded as an agreement to sell.

Mr. and Mrs Conner made a trip to Benton for the purpose of checking the title on the Bland property at Haughton, and on the following day Mr. Conner and Mr. Bland inspected the property at Haughton. After this inspection Conner advised Bland he would not accept a $4,000 mortgage on the Haughton property as a part of the consideration. But, at the same time, Conner suggested that Bland give him his automobile at an agreed price of $1,500, raise his cash deposit by $500, and reduce the amount to be allowed on the Haughton property by the sum of $2,000. Bland submitted this proposition to Mrs. Bland, who was unwilling to part with the automobile on the basis of the figure suggested. All through the negotiations there ran the understanding of the parties that $9,000 was to be procured by the Blands from a local homestead Loan association, which sum, added to the $500 paid over on January 31st, making a total of $9,500, was apparently all the cash available. The negotiations...