Losecco v. Gregory
| Decision Date | 07 January 1901 |
| Docket Number | 13,335 |
| Court | Louisiana Supreme Court |
| Parties | VINCENT LOSECCO v. ALBERT GREGORY |
January 1901
Rehearing refused.
APPEAL from the Twenty-second Judicial District, Parish of Plaquemines -- Hingle, J.
James Wilkinson (E. Howard McCaleb of counsel), for Plaintiff Appellee.
Thomas M. Gill and Charles G. Gill (Henry Denis of counsel), for Defendant, Appellant.
Plaintiff is an orange merchant of New Orleans, in the habit of purchasing the produce of orange orchards in Louisiana in advance of the growth and maturity of the crops.
Defendant was the owner of an orange orchard, and in November, 1898, he agreed to sell to plaintiff, and the latter to buy, the oranges which his orchard would produce in the years 1899 and 1900.
This was signed by both parties.
The plaintiff (Losecco) paid the four thousand dollars stipulated for.
In February, 1899 -- on the 12th, 13th and 14th days thereof -- less than three months from the execution of the contract aforesaid, there occurred an unprecedented freeze, the thermometer going down to seven degrees above zero in the City of New Orleans and eight degrees above in the Parish of Plaquemines, below the city, where defendant's orange orchard was situated.
This freeze, plaintiff alleges, killed and utterly destroyed the orange trees of defendant. The latter admits this in his answer, and the proof establishes it.
Because of the utter destruction of the orchard and no possibility of the production of any crop thereon in the contract years, plaintiff demanded the return of the $ 4000 he had paid.
This was refused and the present suit followed.
The allegation is made that a freeze such as that which destroyed the orchard was never considered nor contemplated by the parties in making the contract, since no orange groves in the section of country where the one in question was located had ever before been destroyed by cold.
The destruction of defendant's grove is ascribed to a fortuitous event, an act of God, and by reason thereof the cause or consideration of the contract is averred to have wholly failed, entitling plaintiff to the relief sought.
Resistance is made on the ground that the agreement between the parties evidences an aleatory contract.
The contention is that Losecco purchased an uncertain hope, an expectancy, a chance -- classifying ungrown crops as such -- and must take the consequences of his bargain. It is claimed that all risks are included by the nature of an aleatory contract, and, besides, that Losecco expressly assumed all risks.
Judgment below was in favor of plaintiff and defendant appeals.
Is this an aleatory contract?
If it be, the defense is good against plaintiff's alleged right of recovery.
"A contract," says C. C. 1776,
Judged by this definition of the law, the contract under consideration is not an aleatory one, because the performance of that which was one of its objects -- the growing of oranges -- did not "depend on an uncertain event," within the meaning of the Article of the Code.
It is a "certain" contract, in the sense of the Article, because "in the usual course of events it must happen."
The cold of February, 1899, which killed all the trees of the grove and prevented the happening of the event -- the growing of the crops of oranges in 1899 and 1900 -- was unusual in the course of events, was phenomenal and extraordinary. The evidence establishes this.
There had been cold weather -- very cold weather for an orange growing country -- in certain years, attended with destruction of the orange crop of the years when occurring, and sometimes with partial destruction of the orange trees -- the killing of the upper and outstanding twigs and branches, requiring trimming and pruning. There, too, was one year, 1895, when it is said by one witness that about half of the orange trees were destroyed.
But the total destruction of entire groves of orange trees had not been known since, certainly, the year 1830, when, as we are vaguely informed by Martin's History of Louisiana (new edition, continuation by Condon), "the severity of the winter * * * destroyed the orange trees."
The evidence discloses that for days following the great freeze of February, 1899, the remarkable spectacle was presented of ice floes in the Mississippi river passing the City of New Orleans, borne by the river's current to the Gulf of Mexico, and that some of the blocks of ice were from twenty to thirty feet in length by from ten to fifteen feet thick.
It does not appear that the like was ever known before on the lower stretch of the river.
It is shown that the temperature at the time of the freeze of 1899 was from six to seven degrees lower than ever before -- the lowest point reached prior to that time, of which any information is given, having been in 1895 when the thermometer registered fourteen degrees above zero.
The principal witness for the defense, who has lived in the Parish of Plaquemines for twenty-five years, and who seems to have kept a record of the cold of the winters, admits that he had never known of a freeze in the parish which approached that of February either in intensity or duration.
We are justified, then, in holding that the contract between these parties litigant was "certain," as contradistinguished from "aleatory," in the meaning of the law, since in the usual course of events it must happen that the trees composing defendant's orange grove, or at least some of them, would have continued to exist during the contract years, and that their total destruction by the freeze in question must be considered as unusual in the course of events.
Defendant sold by the contract "two crops of oranges." He did not sell the hope, or the chance of two crops.
What he sold was oranges, and what he must be understood as warranting was that his trees would be there to do their part towards growing oranges. Lanata vs. O'Brien, 13 La.Ann. 229. The contract certainly contemplated the continued existence of the trees, for the language is "all oranges my trees may produce in the year 1899; all oranges my trees may produce in the year 1900."
The trees, however, disappeared, ceased to exist, were not there to produce oranges, or to make the effort of nature to produce oranges.
But it is said "the purchaser assumed all risks." True, those words are in the contract, and are not to be read out of it. On the contrary, they meant something and effect must be given to them.
We differ from defendant's counsel only in the scope of their meaning.
They are to be considered as meaning all usual, known, or foreseen risks that may attend the inception, growth,...
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