Himel v. Fellman

• Decision Date: 16 February 1931
• Docket Number: 13,327
• Citation: 16 La.App. 347,132 So. 532
• Court: Court of Appeal of Louisiana — District of US
• Parties: HIMEL v. FELLMAN

132 So. 532

16 La.App. 347

HIMEL v. FELLMAN

No. 13,327

Court of Appeals of Louisiana, Orleans

February 16, 1931

Rehearing Refused March 23, 1931.

Appeal from the Civil District Court, Parish of Orleans, Division "A." Hon. Hugh C. Cage, Judge.

Action by Neil Himel against Leo Fellman.

There was judgment for plaintiff and defendant appealed.

Appeal transferred to the Supreme Court. Rehearing refused.

C. J Rivet, of New Orleans, attorney for plaintiff, appellee.

Monroe & Lemann, of New Orleans, attorneys for defendant, appellant.

OPINION

JANVIER J.

Plaintiff seeks the return of a deposit of $ 1,500 made with defendant a real estate agent, in connection with an offer made by plaintiff through the said agent to purchase for the sum of $ 15,000 certain real estate on the Gulf coast in Mississippi.

The petition, without so alleging, treats the said offer to purchase as an absolute nullity, makes no mention whatever of the other party to the contract to purchase the real estate, to-wit: the prospective vendor and, after charging that the said agreement is not specifically enforceable by either party, prays for the return of the deposit.

Defendant, the real estate agent, maintains that he cannot return the deposit except with the consent of the other party to the contract. By reconventional demand he asks for his commission on the sale which he claims he negotiated.

The district court held that the contract was not specifically enforceable by either party and, therefore, concluded that, since the agent had not procured a contract enforceable in law he had not earned his commission. Judgment was, therefore, rendered in the court below in favor of plaintiff condemning defendant to return the full amount of the deposit.

The other party to the contract was not before the court and we cannot see how such a judgment could have been rendered in view of the fact that the defendant filed a plea of "non joinder of a necessary party defendant" because our Supreme Court has said in Maloney v. Aschaffenburg, 143 La. 509, 78 So. 761, 767, that the other party to such a contract is "a necessary party to such a judgment."

In that case the facts were quite similar to those which are now before us and the court held that where a prospective purchaser makes an offer to purchase and it is accepted, the agent who negotiated the transfer becomes the mandatory of both parties and, a suit for the return of the deposit cannot be brought against the agent alone because "where a person is the common agent of others, and is called upon to account, there should be but one proceeding, to which all those in interest should be made parties, and their rights determined in concurso."

True, if the validity of the contract be not involved, or if it be involved only as an unessential incident, then the other party may not be necessary, as the court said in Maloney v. Aschaffenburg, to which we have referred:

"The general rule is that any one having an actual interest in a controversy presented to a court for its determination should be made a party to the suit. Where, however, a suit incidentally involves the rights of a person who is not a party, the court may proceed to decide those questions which only concern the litigants and in which that person has no interest."

The situation here does not justify our holding that the other party to this contract is not interested in the deposit or in the maintenance of the contract and the situation resembles that which existed in the Maloney case from which we now quote further as follows:

"The sole issue, the ownership of the deposit of $ 4200.00 is one in which Aschaffenburg admittedly has an interest, and does not solely concern plaintiffs and Willard & Eiseman."

It is true that our Supreme Court held in Villemeur v. Woodward, decided by it on January 5, 1931 (132 So. 361) that where the nullity vel non of the contract is only incidentally involved the other party need not be brought into the suit but in that case the contract in connection with which the deposit had been made had never been signed by the other party and, therefore, was in fact held to be no contract at all.

Here however, the contract was signed by both parties and, although there appear within it certain omissions as to description and...