Francis v. Blache

• Decision Date: 06 March 1944
• Docket Number: 17991.
• Citation: 17 So.2d 29
• Court: Court of Appeal of Louisiana — District of US
• Parties: FRANCIS v. BLACHE.

17 So.2d 29

FRANCIS v. BLACHE.

No. 17991.

Court of Appeal of Louisiana, Orleans.

March 6, 1944

Rehearing Denied April 3, 1944.

Writ of Certiorari Denied May 22, 1944.

Louis Rosen and Felix H. Lapeyre, both of New Orleans, for plaintiff-appellee.

William H. McClendon, of New Orleans, for defendant-appellant.

McCALEB Judge.

This is an action for the return of a deposit. The facts of the case are not seriously disputed and we find them to be as follows:

On February 3rd 1942, plaintiff addressed an offer to the defendant, who is engaged in the real estate business, to purchase two lots of ground situated in the city of New Orleans for the sum of $1,500, cash. This offer was accepted by Peter F. Dunn, the owner of the lots on February 5h 1942 and plaintiff, in accordance with the conditions set forth in his offer deposited with the defendant, as agent of the owner, the sum of $150 in cash. The offer provided that the act of sale was to be passed on or before April 18th 1942 and that, in the event plaintiff failed to comply with the agreement within the time specified, the owner would have the right either to declare the deposit forfeited or to demand specific performance. It was further provided that, in the event the owner failed to comply with the contract, then plaintiff would have the right either to demand the return of double the deposit or specific performance.

Shortly after the agreement was signed, plaintiff undertook to have the title to the land examined. This examination revealed that the lots had been sold to the city of New Orleans for non-payment of taxes and paving assessments. The amount due the city for these taxes and assessments aggregated $2,471.74, or a sum far in excess of the purchase price. After repeated attempts on the part of plaintiff to have Dunn redeem the land and tender a valid and merchantable title had failed, plaintiff requested that the defendant realtor return to him the deposit of $150. This demand was refused. Subsequently, Dunn, who had moved in the meantime to the State of Tennessee, executed a document (upon the suggestion of plaintiff's attorneys) in which he admitted that he was unable to convey a good title to plaintiff and, in consideration of plaintiff's waiver of his right to demand double the deposit, authorized the defendant to turn over the amount of the deposit to plaintiff. Upon receipt of this document, which was executed by Dunn on January 19th 1943 in the presence of two witnesses and duly acknowledged before a Notary Public in Tennessee, plaintiff made another demand upon the defendant for the return of the deposit. Upon defendant's refusal to accede to this request, plaintiff brought the present action.

In response to plaintiff's claim, defendant filed an exception of non-joinder of parties defendant, an exception of no right or cause of action and an answer in which he contends that he is entitled to withhold the sum of $75, which represents his earned commission. After a trial in the lower court on these issues, there was judgment in favor of plaintiff as prayed for. Defendant has appealed.

At the outset, we address our attention to defendant's exception of non-joinder of parties which was overruled by the trial judge. This exception is predicated on the theory that the suit is, in fact, one for the cancellation of a contract to purchase real estate; that defendant is merely a stakeholder of the deposit sought to be recovered and that, for his protection in the premises, the other party to the contract, Dunn, is not only a proper but an indispensable party. In support of this contention, defendant relies upon the decision of the Supreme Court in Maloney v. Aschaffenburg, 143 La. 509, 78 So. 761.

Counsel for plaintiff concede that it is firmly established in the jurisprudence of this state that, in cases of this type, the prospective vendor (or the purchaser as the case may be) is a necessary and indispensable party to the litigation. See Maloney v. Aschaffenburg, supra; Meade v. Viguerie, 11 La.App. 585, 123 So. 378; Himel v. Fellman, 16 La.App. 347, 132 So. 532, 133 So. 451; Anderson et al. v. Blache et al., 17 La.App. 14, 134 So. 416, and Williams Inv. Co. v. McWilliams, 174 La. 1053, 142 So. 611. They maintain, however, that the situation in the instant case warrants a departure from the rule because Dunn, the prospective vendor, has admitted his inability to comply with the contract by written instrument and has authaorized the defendant, as his agent, to deliver the deposit to plaintiff.

The difficulty we find with the argument advanced by plaintiff's counsel is that it overlooks the underlying reason which prompted the Supreme Court to hold in Maloney v Aschaffenburg that the prospective vendor or purchaser (as the case may be) is a necessary party in controversied such as this. In that case, the prospective vendors of real estate brought suit against Aschaffenburg, the prosepctive purchaser, and Willard and Eiseman, a firm of real estate...