Favrot & Livaudais v. Stauffer
| Decision Date | 14 March 1904 |
| Docket Number | 14,809 |
| Citation | 112 La. 158,36 So. 307 |
| Parties | FAVROT & LIVAUDAIS v. STAUFFER |
| Court | Louisiana Supreme Court |
Rehearing denied April 11, 1904.
Appeal from Civil District Court, Parish of Orleans; Walter Byers Sommerville, Judge.
Action by Favrot & Livaudais against Walter R. Stauffer. The Canal Bank was called in warranty. Judgment for defendant and warrantor, and plaintiffs appeal. Reversed.
Hughes & Favrot, for appellants.
Saunders & Gurley and W. R. Stauffer, for appellee Stauffer. Branch K Miller, for appellee Canal Bank.
Plaintiffs sue the defendant for a diminution in the price of property which the former bought from the latter.
The plaintiffs, in substance, aver that they bought as per the measurement contained in the act of sale; that they intended to make improvements on the place to cover the whole front; that they had prepared plans for buildings which they designed to put upon the lot; that on their failure to find, by nearly one-third, the measurement mentioned in the deed, they had to give up their project.
The amount of the price is $ 16,500.
The asserted value of the diminution claimed by plaintiffs is $ 5,322.58.
Plaintiffs further allege that the property was bought by them by measurement, and not by boundary.
The defendant, in the first place, pleaded the general issue, and, in addition, averred, in substance, that he was owner of the brick building forming the corner of Perdido and Carondelet streets; that there is no interval between this building and the building adjoining.
That in the act of sale by the defendant, Stauffer, to plaintiffs, Favrot & Livaudais, the measurements of the property were erroneously given as 31 feet front on Perdido street.
Defendant further avers that said plaintiffs are architects and builders by profession, and had examined the property before they offered to buy it; that their purpose was to buy the building and lot as the building stood, with its physical limits, which were apparent, and the exact measure of whose dimensions could be approximated by the eye.
Respondent also averred that the annexed references contained in the title sued on by plaintiffs sufficiently informed them of the true facts as to the measurements, and that the deed should be corrected.
Respondent called his vendor, the Canal Bank, in warranty.
The record discloses that some years ago Mrs. Samuel Jamison owed money to the Canal Bank, and had on the 24th of February, 1896, mortgaged this property to her creditor, the bank. She in course of time transferred this property to the bank by an act of dation en paiement.
The bank, after it had owned, sold it to the defendant, and he sold it to plaintiffs.
In all the acts the property is described as measuring 31 feet on Perdido street.
In January, 1903, one of the members of defendant's firm began to treat with the Canal Bank respecting the purchase of the property in question, through its vice president, who was acting for the defendant.
As witnesses, these parties do not agree about what was said regarding the number of feet front the lot has. One affirms, and the other denies, that there was something said about measurement. At any rate, after this conversation between them, plaintiffs addressed a note to Mr. Stauffer, the defendant, of which the following is a copy:
"We hereby offer you sixteen thousand five hundred dollars ($ 16,500) for the certain property situated on Carondelet and Perdido streets, measuring about thirty feet by one hundred feet in the square bounded by Poydras and Baronne streets."
This offer was accepted by defendant and the sale was afterward passed to plaintiff of property measuring 31 feet front by 117 feet in depth.
The vice president of the bank, with whom the buyer treated in matter of the sale, said, in substance, that if he had had to write an offer of the property correctly, or if he had been called upon for the measurement, he would have consulted the act, which he at the time considered correct.
The notary of the bank, before whom all these deeds were passed, informs us by his testimony that, prior to the act of mortgage executed by Mrs. Jamison to the Canal Bank, the actual frontage of the property was 21 feet, and that, by an oversight in the act of mortgage by Mrs. Jamison to the bank, he gave the property, by description, 10 feet more on Perdido than it actually had; that, in copying the description which he inserted years ago in said mortgage, he thought he had made a mistake, and took a "2" for a "3," and gave to the property the erroneous front before stated -- although the title gave her only 21 feet. The same mistake afterward persistently appeared in the different acts. The erroneous description in the act of mortgage was copied and recopied in subsequent acts.
Some time after the sale here in question, the vendees, Favrot & Livaudais, having ascertained that there was a less number of feet front, by 10, than mentioned in their deed of purchase, called on the bank. In an interview between an officer of the bank and Favrot & Livaudais, the bank offered to rescind the sale because of the deficiency in measurement, and pay back the price, with legal interest. The plaintiff firm declined to accept this offer to rescind the sale.
The defendant had judgment in his favor in the court below, and plaintiffs appeal.
We will state at the outset that, in our view, the sale was by measurement, and not by boundary.
There was unquestionably an error committed by defendant. It devolves upon us to determine whether it was of a character to relieve the defendant from the necessity of making good the deficiency.
The error seems to have been confined to the defendant and his authors. This error had slipped itself into several deeds without their knowledge.
Evidently defendant intended to sell the property as a whole, and between him and his author, the Canal Bank, listlessly, as to measurement, passed the act of sale.
When an error arises between the parties, the jurisprudence of this court has gone far in the direction of holding that testimony is admissible of a date prior to, and in explanation of, the real intention of the parties.
The testimony to prove error was properly admitted in the case before us for decision.
Able and learned counsel have invited our attention to a number of decisions of this court sustaining the view that oral testimony may be admitted, and error corrected. With this view we agree. It must appear, however, after this testimony has been admitted, that the error is a common error between the parties.
We have read the decisions cited with most careful attention, and left them convinced that they referred to correction of the description of the deed when it is not the repository of the intention of the parties, and not when one of the parties was in error.
In the first decision cited by defendant (Levy v. Ward, 33 La.Ann. 1035), the error arose "between the original parties, * * * the plea is urged by the representatives of the party against whom error is charged, and who is represented by them as having fraudulently caused the error." There is no question of fraud here, and it is not charged that the plaintiffs were in any way responsible for the error in description.
In the cited case supra there was common error, as shown by the following quotation:
"Ward's written admissions of the identity of the land, though made after the date of the deed, after he had ceased to own the property, not being charged and proved to have been made in error, were conclusive upon him, and actually bind his legal representatives in the same manner." Levy v. Ward, Administratrix, 33 La.Ann. 1037.
The written admission just quoted from the case cited supra is sustained, as to its correctness, by the testimony. It follows that in the cited case it was an error in which the vendee had participated, and for which he was to some extent responsible.
The next decision cited by defendant shows that plaintiff had agreed to sell the defendant two tracts of land -- one containing 2,840 acres; the other, 2,122 acres. The act, by error, was made to include three tracts of land. In answer to the suit brought by plaintiff for correction, the purchaser denied that there had been a mistake. The court said: "The parol testimony being admitted, there can be no doubt of the real intention of the...
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