De Salvo v. Doll

• Decision Date: 26 February 1945
• Docket Number: 18250.
• Citation: 21 So.2d 60
• Court: Court of Appeal of Louisiana — District of US
• Parties: DE SALVO v. DOLL

21 So.2d 60

DE SALVO v. DOLL

No. 18250.

Court of Appeal of Louisiana, Orleans.

February 26, 1945

Yarrut & Fishman, of New Orleans, for plaintiff-appellee.

E A. Parsons, of New Orleans, for defendant-appellant.

McCALEB Judge.

Appellee moves to dismiss this appeal on the ground that the amount in controversy exceeds $2000 and, therefore, is within the appellate jurisdiction of the Supreme Court under Section 10 of Article VII of the Constitution of 1921.

The record reveals that appellee brought suit against appellant in the Civil District Court for the recission of a contract of sale of real property and for the recovery of $420 deposited with appellant, as agent, for the faithful performance of the contract. He alleged in his petition that, on February 2 1944, he and his wife signed a written offer to purchase the real property designated as Nos. 4112-4114 Eagle Street in the city of New Orleans for the price of $4200; that said offer was accepted in writing by appellant on February 3 1944; that, although appellant designated himself as agent in the agreement of sale, he was actually acting for and in his own behalf as owner of the property; that, under the terms of the sale agreement, appellee obligated himself to deposit 10% of the purchase price with appellant and that, on February 4th 1944, he made said deposit amounting to the sum of $420. He further alleged that, after the execution of the agreement of sale, he proceeded to have the title to the property examined and a survey made; that according to the survey, the improvements on the land encroach upon other property adjoining it in the rear; that, for this reason and for the further reason that the title to the property is suggestive of litigation, he is entitled to have the agreement of sale rescinded and to the return of his deposit together with recovery for certain expenses incurred by him amounting to $20.50. He prays accordingly.

The defense to the suit is that the title to the property is good and merchantable and appellee also reconvened for a specific performance of the contract.

After a trial, there was judgment for appellee, as prayed for, and appellant appealed to this court.

Since the main demand of the appellee is for the recission and annulment of a contract to purchase real estate for $4200, it is apparent to us that the Supreme Court has appellate jurisdiction of the controversy. It has been repeatedly held by this court, in a long line of decisions, that, where a contract for the sale of property involving more than $2000 is sought to be rescinded, we are without jurisdiction, even though the amount of the monied demand is for the recovery of a sum within our appellate jurisdiction. See Bussey v. Barilleaux, 14 La.App. 82, 129 So. 167; Hunley v. Ascani, 14 La.App. 95, 129 So. 164; Bussey v. Wise-Miller, 14 La.App. 104, 129 So. 166; Boisseau v. Vallon & Jordano, 15 La. App. 389, 132 So. 237; Himel v. Fellman, 16 La.App. 347, 132 So. 532, 133 So. 451; Roe v. Maniscalco, 15 La.App. 281, 131 So. 607; and Baumann v. Michel, La.App., 176 So. 907.

Counsel for appellant, however, proclaims that all of the foregoing authorities have been impliedly, if not expressly, overruled by the Supreme Court in the comparatively recent decision of Richardson v. Charles Kirsch & Co., 191 La. 991, 187 So. 1, where that court re-transferred an appeal to us, holding that we had erroneously transferred the matter to it in our opinion in 179 So. 631.

In the Richardson case, plaintiff brought suit to recover certain U S. Treasury bonds which she had deposited with a firm of real estate agents, in lieu of a cash deposit of $800, to guarantee that she would carry out a contract to buy from a Mrs. Murphy a house and lot for the price of $8000. Mrs. Murphy was joined with the real estate firm as a defendant to the suit. In defense to the action, she claimed that she was entitled to the deposit because the contract to purchase the house and lot had been breached through the fault of plaintiff. The real estate firm claimed a lien on the deposit to secure its commission of $320. After a trial of the case of the merits, the district court gave judgment for the plaintiff ordering defendants to return the deposit to her and further granted judgment against Mrs. Murphy for an additional sum of $800 (double the deposit) plus attorneys' fees and expenses. The defendants prosecuted an appeal to this court, where the matter was later transferred to the Supreme Court on the ground that we were without jurisdiction because the full purchase price of the contract of sale was the amount in dispute. See La.App., 179 So. 631. When the case reached the Supreme Court, that court found that we were wrong in holding that we were without jurisdiction as the amount in dispute did not exceed double the amount of the deposit, which plaintiff had placed with the real estate agents. In thus concluding, the Supreme Court said [191 La. 991, 187 So. 2]: 'The price for which Mrs. Richardson agreed to buy and for which Mrs. Murphy agreed to sell the property,--which was $8,000,--was never in dispute, or in contest, in this suit. All of the parties to the suit acknowledged in their pleadings that the contract for the sale of the property was at an end before the suit was filed. The only question in...