McMillan v. Lorimer

• Decision Date: 04 January 1926
• Docket Number: 27410
• Citation: McMillan v. Lorimer, 160 La. 400, 107 So. 239 (La. 1926)
• Court: Louisiana Supreme Court
• Parties: McMILLAN et al. v. LORIMER

107 So. 239

160 La. 400

McMILLAN et al. v. LORIMER

No. 27410

Supreme Court of Louisiana

January 4, 1926

Rehearing Denied February 1, 1926

Appeal from Fifth Judicial District Court, Parish of Richland; John R. McIntosh, Judge.

Separate suits, by Charles V. McMillan and others, and by all said plaintiffs, with the exception of Joseph C. March, against Leonard Lorimer, consolidated for trial. From a judgment of dismissal, plaintiffs appeal.

Affirmed.

Theus Grisham & Davis, of Monroe, for appellants.

Fink &amp Lowes, of Chicago, Ill., and Hudson, Potts, Bernstein & Scholars, of Monroe, for appellee.

ROGERS, J. THOMPSON, J., recused. O'NIELL, C. J., concurs.

OPINION

ROGERS, J.

On September 18, 1923, Charles V. McMillan, Joseph C. March, and various other parties, all residents of the state of Wisconsin, brought suit against Leonard Lorimer, a citizen of the state of Illinois, in the Eighth judicial district court for the parish of Catahoula, to obtain judgment for the sum of $ 525,000, with interest, as the balance due under an alleged contract of sale of the lands described therein, and for the seizure and sale of said lands to enforce petitioners' lien and mortgage thereon. On September 24, 1923, the same plaintiffs, with the exception of Joseph C. March, instituted another suit in the same court against the same defendant to enforce another and similar contract, but covering different lands, entered into on the same day. Joseph C. March was not a party to this second contract. The judgment sought in this case was for $ 27,000.

A curator ad hoc was appointed to represent defendant, but he employed special counsel, who filed exceptions and an answer in his behalf in each suit.

By agreement both cases were transferred to, and consolidated for trial in, the Fifth judicial district court for the parish of Richland. In the meantime two of the plaintiffs died, and their heirs and legal representatives were made parties.

All of the defendant's exceptions were referred to the merits, and the cases were then taken up for trial. After submission they were taken under advisement, and judgment was finally rendered in each case sustaining, "on account of the law," the exception of no cause or right of action. Plaintiffs' suits were accordingly dismissed, and they have appealed. By another agreement, the consolidation of the causes was extended for the purposes of the appeal, and only one transcript containing the pleadings and evidence pertinent to each case was lodged in this court.

We do not find any error in the ruling of the court below in sustaining defendant's exception. Plaintiffs brought their actions on the theory that the contracts in question are executed and not executory agreements; that they are actually contracts of sale and not merely agreements to sell. We think they are wrong in thus interpreting the agreements. An inspection of the instruments, copies of which are annexed to and made a part of the petitions, shows that they are not designated as sales, and are not in the language or form of sales. They are not, and do not purport to be, translative of property, but are conditional agreements to sell the lands described therein upon compliance by defendant with the conditions stipulated. These conditions are, that the purported vendors are to furnish the purported purchaser with abstracts of good and merchantable title of the lands, free of liens and incumbrances, except taxes; that the alleged purchaser shall be required to take only such portions of said real estate the titles to which are good and merchantable, or which can be perfected within a period of one year; future delivery of deeds is contemplated; occupancy and possession by the prospective purchaser, not as owner, but as a tenant by sufferance, is stipulated; a tenant's obligation as to repairs is provided for, and further provision is made for his removal as a tenant holding over; the right of the alleged purchaser to cut timber is restricted to selected tracts of not less than 160 acres each on the basis of an agreed price of $ 45 per acre, to be paid for previous to any cutting, and after notice to the prospective vendors of said selection, separate deeds tobe made for each tract thus selected and paid for.

The authorities are numerous that an agreement such as the ones in question here is not a sale but a mere promise to sell; that such a promise amounts to a sale only in the sense that the contract gives the parties the right to demand the specific performance thereof. The prospective purchaser has the right to enforce the transfer and delivery, and the prospective vendor has the right to compel the acceptance of the property and the payment of the purchase price. See Civ. Code, arts. 2013, 2349, 2462; Herold v. Stockwell, 32 La.Ann. 949; Todd v. Insurance Co., 34 La.Ann. 63; Baldwin v. Morey, 41 La.Ann. 1105, 6 So. 796; Collins v. Desmaret, 45 La.Ann. 108, 12 So. 121; Capo v. Bugdahl, 117 La. 992, 42 So. 478; Talbot v. N. O. Land Co., 143 La. 263, 78 So. 553.

Counsel for plaintiffs cite Girault v. Feucht, 117 La. 276 41 So. 572, and Lehman v. Rice, 118 La. 975, 976, 43 So. 639. These cases are against and not in favor of their contention. They support the general rule to which we have hereinbefore referred. Counsel for plaintiffs also cite State v. Whited & Whelis, 104...