Elazab v. Bryant, 2740

• Citation: 203 So.2d 834
• Decision Date: 06 November 1967
• Docket Number: No. 2740,2740
• Parties: Mrs. Nancy ST. CYR, Wife of/and Muneer E. ELAZAB v. William BRYANT, Bryant Homes, Inc. and Hilda Land Co., Inc.
• Court: Court of Appeal of Louisiana (US)

Page 834

203 So.2d 834

Mrs. Nancy ST. CYR, Wife of/and Muneer E. ELAZAB v. William BRYANT, Bryant Homes, Inc. and Hilda Land Co., Inc.

No. 2740.

Court of Appeal of Louisiana, Fourth Circuit.

Nov. 6, 1967.

Lucas F. Bruno, Jr., New Orleans, for plaintiff-appellees.

Roland R. Selenberg, Metairie, for defendant-appellant.

Before McBRIDE, REGAN and BARNETTE, JJ.

McBRIDE, Judge.

Originally this suit involved a claim by plaintiffs against their vendors for the rescission of the sale of 2209 Roosevelt Boulevard, Parish of Jefferson, on the ground of redhibition. During the trial the suit was terminated by compromise, the nature of which was somewhat unusual. On September 24, 1965, defendant William Bryant, in open court, made a verbal offer to compromise the suit by personally agreeing to purchase 2209 Roosevelt Boulevard from plaintiffs on the following terms and conditions: The sale for the price of $20,214.83 to be without warranty by the sellers as to the soundness of the buidings, the act of sale to be passed before purchaser's notary within 60 days. Plaintiffs verbally accepted the 'compromise' offer to Bryant and agreed to sell to him on such terms . It was further mutually agreed that whereas the property was then in a damaged condition as a result of hurricane Betsy, the pending claim which plaintiffs had against their windstorm insurer for the amount of the loss would be assigned to Bryant.

As reflected by the stenographic notes of evidence, all parties and the trial judge considered the litigation fully compromised by virtue of the offer to buy and agreement to sell.

On October 16, 1965, before the termination of the 60-day period in which Bryant was to take title, plaintiffs entered into a written agreement of sale with J. O. Kuebel whereunder they would purchase from him Lot 50 with improvements of Macque Subdivision for $37,000 and Kuebel was to purchase from them 2209 Roosevelt Boulevard 'Subject to the conditions listed on the reverse side hereof', the pertinent portions of such conditions reading thusly:

'1. After 45 days J. O. Kuebel agrees to purchase from Mr. and Mrs. Maneer E. Elazab their residence located at $2209 Roosevelt Blvd., Kenner, Louisiana, for the sum of Eighteen Thousand Seven Hundred Twenty Dollars ($18,720.00). This purchase agreement will be null and void should Mr. and Mrs. Elazab, the owner, decide to pay in cash $18,720 towards the purchase of 193 Macque St. to cancel this paragraph of the agreement. It is further agreed and understood that the agreement to purchase 193 Macque Street is final and definite and that the owners, Mr. and Mrs. Elazab, at their option can either sell 2209 Roosevelt Blvd. for his own account or sell to J. O. Kuebel for the price and sum as agreed $18,720.00 when passing the act of sale of 193 Macque Street, Harahan, Louisiana.

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'3. The Dixie Homestead has an appraisal on 2209 Roosevelt Blvd. of $20,800 less $1,800.00 for storm damage or an appraisal of $19,000.00 as is. Since the amount of $1,800 is covered by insurance they will require the Storm Damages repaired. It is understood Mr. Elazab will complete these repairs as listed on the appraised report, before title is exchanged, and likewise all work at 193 Macque St. shall be completed by J. O. Kuebel.'

On November 24, 1965 (one day subsequent to the termination of the 60-day period within which Bryant was to take title) plaintiffs filed a rule against Bryant reciting that he did not take title to 2209 Roosevelt Boulevard as per his agreement and seeking '* * * a judgment * * * against William Bryant, in their favor in a sum that is just, fair and equitable by virtue of the pleadings and most especially the stipulations hereinabove referred to.'

There was no objection whatever made on behalf of Bryant as to the form of procedure invoked by plaintiffs or as to time at which the rule was filed, and the matter was contradictorily tried on December 3, 1965, evidence being adduced on behalf of all parties. Upon termination of the trial, the judge below made the rule absolute and rendered judgment in favor of plaintiffs (movers) and against Bryant for the sum of $1498.83, which is the exact difference between the amount for which Bryant had offered to buy 2209 Roosevelt Boulevard and the amount for which plaintiffs sold said property to Kuebel under their agreement with him. As part of the evidence appears a certified copy of a notarial act of sale wherein plaintiffs sold 2209 Roosevelt Boulevard to Joseph Kuebel for $18,720, said act being dated December 1, 1965, which was a time subsequent to the filing of the rule for judgment against Bryant.

Bryant has perfected this appeal from said judgment rendered against him on the rule.

Pretermitting all contentions of appellant Bryant, our opinion is that the judgment appealed from is clearly erroneous and must be reversed for the simple reason movers in rule were not damaged to any extent by the failure of Bryant to purchase 2209 Roosevelt Boulevard.

As pointed out, the trial judge measured the 'damages' by computing the difference between the price Bryant had offered to pay and the amount for which movers sold to Kuebel. This formula is not the proper method for measuring any damages movers sustained, but even if that formula is utilized movers have proved no loss. It was error to accept the figure of $20,214.83 as the amount for which Bryant was obligated to buy the property. It is not to be overlooked that movers at the time of their agreement with Bryant then had a pending claim against their windstorm insurer for the amount of damages inflicted upon the property by the hurricane. Under the agreement not only was Bryant to receive title to the property for the $20,214.83, but he was also to become the assignee of movers' claim against the insurer. The amount of such claim can be gleaned from the record as there appears in the condition on the...