Buras v. Fidelity & Deposit Co. of Maryland, 17435.

CourtCourt of Appeal of Louisiana (US)
Writing for the CourtMcCALEB, Judge.
Citation198 So. 396
PartiesBURAS ET AL. v. FIDELITY & DEPOSIT CO. OF MARYLAND.
Decision Date04 November 1940
Docket Number17435.

198 So. 396

BURAS ET AL.
v.
FIDELITY & DEPOSIT CO.
OF MARYLAND.

No. 17435.

Court of Appeal of Louisiana, Orleans.

November 4, 1940


Rehearing Denied Dec. 2, 1940.

Writ of Certiorari Granted Jan. 6, 1941.

Appeal from Civil District Court, Parish of Orleans; Wm. H. Byrnes, Jr., Judge.

Action by Mrs. Ben V. Buras and another against the Fidelity & Deposit Company of Maryland to recover amount of purchase price paid under bond for deed agreement to bonded real estate company. From a judgment for the plaintiffs, defendant appealed to the Supreme Court which transferred the appeal, 195 La. 244, 196 So. 335, to the Court of Appeal.

Reversed and rendered.

WESTERFIELD, J., dissenting.

P. M. Milner, of New Orleans, for appellant.

J. A. Woodville and J. L. Warren Woodville, both of New Orleans, for appellees.

McCALEB, Judge.

The plaintiffs, Mr. and Mrs. Ben V. Buras, residents of Plaquemines Parish, brought this suit against the defendant, Fidelity & Deposit Company of Maryland, to recover the sum of $1,250 which they allegedly paid to Priest, Montagnet & Roshko, Inc., a corporation engaged in the business of selling real estate in Louisiana, in conformity with an agreement to purchase from the real estate company two certain lots of land situated in Jefferson Parish. Liability against the defendant bonding company is sought to be enforced under a certain statutory bond executed by it in accordance with the provisions of Section 16 of Act 236 of 1920 whereby it agreed to indemnify the public for any wrongful conduct on the part of Priest, Montagnet & Roshko, Inc., in the operation of its business as a real estate broker.

The main defense of the bonding company is that there is no responsibility on its part, with reference to the wrongful acts complained of in plaintiff's petition which are attributed to Priest, Montagnet & Roshko, Inc., for the reason that the realty firm was not acting in its capacity as real estate broker, as defined by the provisions of Act 236 of 1920, during the course of its transactions with the plaintiffs.

After a trial in the district court, there was judgment in favor of the plaintiffs for the amount sued for and the defendant has prosecuted this appeal from the adverse decision.

The facts of the case, as alleged in the petition and as sustained by the evidence, are not seriously in dispute and we find them to be as follows: [198 So. 397]

In the years 1927, 1928 and 1929, Priest, Montagnet & Roshko, Inc., a corporation duly organized under the laws of this State, was licensed and bonded as a real estate agent and broker and, in conformity with the provisions of Act 236 of 1920, it executed a bond in the sum of $10,000 with the defendant, Fidelity & Deposit Company of Maryland, as surety thereon, enuring to the benefit of the public and conditioned upon its faithful performance of its duties in the conduct of its business as real estate agent and broker.

In addition to its real estate brokerage business, it appears that the corporation, Priest, Montagnet & Roshko, Inc., was also engaged in the development of suburban sub-divisions. On July 19, 1926, it purchased a certain tract of land in Jefferson Parish known as the Soniat or Tchoupitoulas Plantation from M. C. Soniat du...

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2 practice notes
  • Buras v. Fidelity & Deposit Co. of Maryland, 36050.
    • United States
    • Supreme Court of Louisiana
    • March 3, 1941
    ...of certiorari to review the judgment of the Court of Appeal reversing the judgment of the lower court and dismissing plaintiffs' suit. See 198 So. 396. It is contended by the defendant that it became surety on the bond of Priest, Montagnet & Roshko, Inc., as a real estate broker under the p......
  • Acorn Refining Co. v. Ringgold, 2159.
    • United States
    • Court of Appeal of Louisiana (US)
    • November 9, 1940
    ...applied, and it appears that their testimony constitutes a preponderance of the evidence on that point. It is also shown by preponderance [198 So. 396] of the evidence that the paint was used and applied in accordance with the directions on the cans. It is evident, since the paint was prope......
2 cases
  • Buras v. Fidelity & Deposit Co. of Maryland, 36050.
    • United States
    • Supreme Court of Louisiana
    • March 3, 1941
    ...of certiorari to review the judgment of the Court of Appeal reversing the judgment of the lower court and dismissing plaintiffs' suit. See 198 So. 396. It is contended by the defendant that it became surety on the bond of Priest, Montagnet & Roshko, Inc., as a real estate broker under the p......
  • Acorn Refining Co. v. Ringgold, 2159.
    • United States
    • Court of Appeal of Louisiana (US)
    • November 9, 1940
    ...applied, and it appears that their testimony constitutes a preponderance of the evidence on that point. It is also shown by preponderance [198 So. 396] of the evidence that the paint was used and applied in accordance with the directions on the cans. It is evident, since the paint was prope......

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