Everhardt v. Sighinolfi
| Decision Date | 06 May 1957 |
| Docket Number | No. 43130,43130 |
| Citation | 95 So.2d 632,232 La. 996 |
| Court | Louisiana Supreme Court |
| Parties | Leon John EVERHARDT v. Richard SIGHINOLFI. |
Joseph Rosenberg, New Orleans, for appellant.
Charles E. de la Vergne, New Orleans, for defendant-appellee.
Specific performance of a contract to sell real estate is demanded herein. The suit was dismissed on exceptions of no right and no cause of action, and plaintiff is appealing from the judgment.
For the purpose of passing on the exceptions the well pleaded allegations of fact of the petition, as well as the contents of the annexed document, are to be accepted as true. These reveal that on November 7, 1955 plaintiff and defendant consummated a written contract wherein the former agreed to purchase and the latter to sell the premises known as Nos. 1718--20 North Rampart Street, in the City of New Orleans, for $18,500 cash, it being stipulated that the act of sale was to be passed before purchaser's notary on or prior to March 1, 1956. At the time 10% Of the purchase price was deposited with the real estate agent. Thereafter, plaintiff caused the title to be examined and made other necessary arrangements to effect the purchase.
On or about December 1, 1955, when seeking to contact defendant, plaintiff was informed by defendant's wife that he had left the United States and would not return until about February 1, 1956. Prior to the latter date (and thereafter) plaintiff was ready, willing, able, and eager to take title; and, in the absence of the defendant from the country, he communicated this information to the defendant's wife, telling her that February 1, 1956 at 2:00 P.M. o'clock was the time set for passage of the act of sale. He was then informed that defendant would not return until sometime in April, 1956. On February 1 plaintiff again contacted such wife and learned that defendant had not given anyone a power of attorney for the passing of title. Nothing further was done within the time (on or prior to March 1, 1956) fixed in the written agreement for executing the act of sale.
Defendant did not return to the United States until April 12, 1956. Immediately thereafter plaintiff notified him to appear in the notary's office on Aril 20, 1956, at 3:30 P.M. o'clock, to transfer title. Plaintiff was there at the designated time ready, willing and able to comply with the terms of the contract; but the defendant did not appear, he having informed plaintiff that he would not complete the sale.
This suit was filed four days later pursuant to the following provision contained in the annexed written contract: 'In the event the seller does not comply with this agreement within the time specified, the purchaser shall have the right either to demand the return of his deposit in full plus an equal amount to be paid as penalty by the seller; Or the purchaser may demand specific performance, at his option.' (Emphasis ours.)
The petition, in our opinion, states both a right and a cause of action. As above pointed out it shows that within the specified time plaintiff was fully prepared and eager to accept title, and he so informed defendant's wife; whereas the defendant prevented the timely passage of the sale by his having absented himself from the United States throughout the mentioned period without leaving a power of attorney. And according to an express provision of the contract (above quoted) plaintiff had the right to demand specific performance such as he now seeks, on defendant's failure to comply with the agreement.
Under the sustained exceptions of no right and no cause of action the defendant takes the position that, for the success of this suit, plaintiff was required to formally place him in default Prior to the last date for performance, and that such was not done. Seemingly, an act of that kind would have been premature for defendant had almost until the last moment of the designated date to tender title (Revised Civil Code Article 2057). Be that as it may the absence of defendant rendered impossible his compliance with the agreement; and any formal demand made on him to comply would have been vain and useless.
The cases cited by defendant in support of his position are inappropriate because of dissimilar factual situations. In Di Cristina v. Weiser, 215 La. 1115, 42 So.2d 868, and Hoth v. Schmidt, 220 La. 249, 56 So.2d 412, primarily relied on by him, the involved contracts of sale contained a provision (not found in the instant agreement) reciting as follows: 'In the event that purchaser fails to comply with this agreement within the time specified, the vendor shall have the right, either to declare the deposit, ipso facto, forfeited, Without formality and without...
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