Decuers v. Bourdet

• Decision Date: 18 March 1929
• Docket Number: 10,708
• Citation: 10 La.App. 361,120 So. 880
• Court: Court of Appeal of Louisiana — District of US
• Parties: DECUERS v. BOURDET

120 So. 880

10 La.App. 361

DECUERS v. BOURDET

No. 10,708

Court of Appeals of Louisiana, Orleans

March 18, 1929

Appeal from Civil District Court for the Parish of Orleans, Division "E." Hon. Wm. H. Byrnes, Jr., Judge.

Action by Miss Leonora Decuers against John W. Bourdet.

There was judgment for plaintiff and defendant appealed.

Judgment amended, reversing judgment of lower court on reconventional demand.

Judgment amended.

L Walter Cockfield, of New Orleans, attorney for plaintiff appellee.

Warren O. Coleman and Gus Levy, of New Orleans, attorneys for defendant, appellant.

OPINION

JONES J.

Plaintiff sued defendant on a $ 300.00 promissory note, and for the return of an alleged cash advance of $ 250.02.

Defendant admitted owing the note and reconvened for the return of two engagement presents, a diamond ring valued at $ 315.00, and a bureau set valued at $ 45.00.

The Judge of the District Court after dismissing the reconventional demand gave judgment for plaintiff for the amount of the promissory note, dismissing as of non-suit the claim of $ 250.00. Defendant has appealed but there is no answer to the appeal.

Plaintiff argues that the trial judge erred in not dismissing the reconventional demand because it did not grow out of the same transaction as the main demand.

The record shows that the defendant borrowed the money evidenced by the note from his fiancee to prosecute his claim against the United States Government for injuries sustained while serving in the United States Navy, during the World War, that they might be married at an early date.

As the money would not have been advanced if there had been no marriage contract, and as the engagement presents were also given to crystallize and solemnize the same contract, the holding of the trial judge was correct on this point.

He dismissed the reconventional demand, because he found that defendant was primarily responsible for the breach of the engagement, but we do not find it necessary to pass on this doubtful point, as the law clearly sustains defendant's contention, if the marriage does not take place, no matter by whom the breach is caused. Plaintiff's remedy was a suit for damages for breach of promise, but she could not arbitrarily keep engagement presents as damages.

Johnson vs. Levy, 118 La. 447, 43 So. 46.

Art. 1897 of R. C. C. reads:

"The contract is also considered as being without cause when the consideration for making it was something which, in the contemplation of the parties, was thereafter expected to exist or take place, and which did not take place or exist. A gift in consideration of a future marriage is void by this rule, if the marriage did not take place."

Art. 1740 R. C. C. reads:

"Every donation made in favor of marriage falls, if the marriage does not take place."

This is a literal translation of the Code Napoleon, Art. 1088, and the French commentators apparently agree that such gifts are revocable.

Laurent, Vol. 15, p. 208, Sec. 167, says:

"Une donation faite en faveur du marriage est une donation conditionelle; la donation n'ayant d'autre objet que de favoriser le marriage est par la meme faite sous la condition que le marriage en faveur duquelle elle a lieu s'accomplisse. Si la condition defaillit, il en resulte qu'il n'y a jamais eu de donation."

Baudry-La Cantinierie, Vol. 11, p. 846, Art....