Elliott v. Dupuy

• Decision Date: 06 November 1961
• Docket Number: No. 45595,45595
• Citation: 135 So.2d 54,242 La. 173
• Parties: Mrs. Marie Amlie Dupuy ELLIOTT et al. v. August C. DUPUY et al.
• Court: Louisiana Supreme Court

Page 54

135 So.2d 54

242 La. 173

Mrs. Marie Amlie Dupuy ELLIOTT et al. v. August C. DUPUY et al.

No. 45595.

Supreme Court of Louisiana.

Nov. 6, 1961.

Rehearing Denied Dec. 11, 1961.

Maurice G. Indest, New Orleans, for plaintiffs-applicants.

Reginald T. Badeaux, Jr., New Orleans, for defendants-appellees.

HAWTHORNE, Justice.

Plaintiffs instituted this suit for specific performance of two contracts in which they had agreed to purchase and defendants had agreed to sell certain land. ¹ Alternatively they prayed for damages for breach of contract. The suit was dismissed by the district court on exception of no cause of action, and this judgment was affirmed by the Fourth Circuit Court of Appeal. See 127 So.2d 260. On application of plaintiffs we granted a writ.

It is well settled that an exception of no cause of action addresses itself to the sufficiency in law of the petition and is triable on the face of the papers; that for the purpose of determining the issues raised by this exception, the well pleaded facts in the petition and any annexed documents must be accepted as true, and that a suit will not be dismissed on exception of no cause of action if allegations of fact set forth a cause of action as to any part of the demand. Spiers v. Davidson, 233 La. 239, 96 So.2d 502, and cases there cited. See also Everhardt v. Sighinolfi, 232 La. 996, 95 So.2d 632. With this principle of law in mind, let us now consider plaintiffs' original and amended petitions and the documents annexed.

On April 17, 1958, in two identical written contracts the defendants, August C. Dupuy and Louis E. Dupuy, offered to sell and convey to the plaintiffs, Mrs. Marie Amlie Dupuy Elliott, Mrs. Marie Louise Dupuy Jacobs, and Mrs. Marguerite M. Dupuy Fowler, their undivided interests in tracts of land therein described for.$19,000 cash to each. On the same day plaintiffs accepted this offer in writing and deposited with defendants agent and attorney in fact $3,800 pursuant to the provision in each contract that 'If this offer is accepted, the purchasers must deposit with seller or seller's attorney in fact, Reginald T. Badeaux, Jr., 402 Delta Building New Orleans, Louisiana, ten (10%) percent of purchase price, amounting to One Thousand Nine Hundred And No/100 ($1,900.00) Dollars'. Each of these contracts also contained the following provision:

'Act of sale at expense of purchasers to be passed before purchasers' notary on or prior to May 17, 1958, providing that if bona fide curative work in connection with title is required, the parties herewith agreed to and do extend the time for passing of act of sale by thirty days.'

On May 17, the date for executing the acts of sale, the parties signed a written agreement stating that they '* * * for the same consideration originally recited in said contract, extend the time for passage of said act of sale before the notary for Home Building and Loan Association from May 17, 1958 to and including May 31, 1958.'

The pertinent allegations of fact are set out in the original and amended petitions as follows:

Time for passage of the acts of sale was extended from May 17 to May 31 in order that the title examination for plaintiffs might be completed. In the latter part of May a serious defect in the title was discovered requiring bona fide curative work on the title, and as a result the 30-day extension of time for passing of title came into effect, automatically extending the time for executing the acts of sale to June 30, 1958. Petitioners' application for a loan was approved by the Home Building and Loan Association in the latter part of May for an amount sufficient to pay the balance of the agreed purchase price, and the notary before whom the acts of sale were to be passed ordered conveyance, mortgage, paving, and tax certificates, which were delivered to him in the early part of June.

The curative work on the title was completed early in June, and on June 18 the attorney for the plaintiffs informed the defendants' attorney, who was also their attorney in fact, that plaintiffs were willing, able, and ready to execute and complete the acts of sale at 2:00 p.m. on June 19. The defendants' attorney in fact at that time told plaintiffs' attorney that the passing of the acts of sale on this date would not be possible. Other dates were suggested for passing of title, but the parties could not definitely agree on a specific date. On or about June 26 or 27 the plaintiffs' attorney informed the defendants' attorney in fact by leaving a message with the latter's secretary that June 30 at 9:00 a.m. was fixed for passing the acts of sale, and that plaintiffs were ready, willing, and able to take title. Later that day the secretary of the defendants' attorney in fact telephoned plaintiffs' attorney and informed him that she had been instructed by her employer to tell plaintiffs' attorney that the acts of sale could not be passed on June 30 because the defendants' attorney had a special fixing that day for the trial of a case before a jury in the civil district court and his clients refused to execute the acts of sale unless he could be present. Thereupon the plaintiffs' attorney requested that the defendants' attorney telephone him. At the same time he informed the secretary that plaintiffs expected defendants to appear in the notary's office for passage of the acts of sale at the appointed time on Monday, June 30; that the acts would be passed at this time but that the notary would retain them in his possession without registering them until the following day so that the attorney for defendants might have an opportunity to examine these acts, and that they would not be recorded until the attorney for defendants had examined them. The defendants did not appear at the notary's office for the passage of the acts on June 30.

The Court of Appeal held that the 10 per cent deposits made by plaintiffs in this case were earnest money, and that accordingly, under the provisions of Louisiana Civil Code Article 2463 and decisions of the courts of this state, plaintiffs were not entitled to specific performance. ² Plaintiffs-relators concede this holding to be correct, and the question of their right to specific performance is not an issue here. We must determine, however, whether plaintiffs' petition has alleged a cause of action on their alternative demand for damages. On this phase of the case the Court of Appeal concluded that plaintiffs had not alleged facts which would entitle them to double the deposits because the petition did not disclose that plaintiffs had placed the defendants in default, as is necessary before a party to a commutative contract can claim damages for its passive breach.

To decide whether plaintiffs have stated a cause of action on their alternative demand for damages we must first determine the expiration date of the contracts. It is defendants-respondents' contention that in these agreements to buy and sell real estate time was of the essence of the contracts, that the contracts terminated on May 31, that plaintiffs' petition discloses that they permitted this date to pass without taking any action, and that accordingly they cannot successfully demand specific performance or, alternatively, damages. On the other hand, plaintiffs-relators contend that the written agreement dated May 17 extending the time for passing the acts of sale to May 31 not only extended the time for passage of the acts but also extended all other provisions of the original contracts including the provision that '* * * if bona fide curative work in connection with title is required, the parties herewith agreed to and do extend the time for passing of act of sale by thirty days'; that since bona fide curative work in connection with the title was necessary, the time for passing the acts of sale was extended for 30 days, to June 30, 1958.

We are therefore called upon to determine the intent of the parties to these contracts--that is, whether the instrument of May 17 extended the entire contracts including all of their provisions or whether it extended only the time for passing title.

It is well settled in the jurisprudence that in interpreting controversial clauses in a contract the court is guided by the interpretation the parties themselves placed upon the agreement and their understanding of it as shown by their actions. Wilcoxen v. Bowles, 1 La.Ann. 230; J. B. Levert Co. v. John T. Moore Planting Co., 135 Pa. 77, 64 So. 987; Breard v. Pyramid Oil & Gas Co., 191 La. 420, ...