165 So. 478 | La. Ct. App. | 1936
Defendants deny that they breached the contract, and urge, as a special defense, that plaintiff himself violated its covenants, in that he refused to perform the duties devolving upon him thereunder "as master of ceremonies" and tap dancer during the show season of 1934; that he agreed in the contract to abide by the rules and regulations promulgated by defendants, but failed and refused to do so by absenting himself from rehearsals, and by failing to appear and accompany the show when it departed on its regular tour.
There was judgment for plaintiff below, after trial on the merits. Defendants have appealed.
The contract sued on is one "to do." As the petition does not disclose that any services were thereunder rendered, article 1926 has application. Only actual damages may be recovered. None is alleged. If the laborer, or other person bound to service, has performed part of his duties under his engagement, then article 2749 has application. There must be a "sending away," under this article, and, if the service has not begun, this cannot be done.
In Word v. Winder, 16 La.Ann. 111, the court used this unambiguous language, dealing with facts similar to those present in the case at bar:
"The article
The principle enunciated in these cases was approved in Tete v. Lanaux, Executor, 45 La.Ann. 1343, 14 So. 241, and in Smith v. Pollock Co.,
"In the case of Lloyd v. Dickson,
"`But it has been held that this article is in the nature of a penal statute and has no application to a contract for the letting and hiring entirely unperformed in all of its parts, and that for the breach of such executory contracts only actual damages can be recovered.'
"Citing Trefethen v. Locke, supra.
"Plaintiff's alleged contract with defendant was, according to his petition, entirely unperformed, and this case falls squarely under the principle announced in the above case."
We think the exception of no cause of action well founded and should have been, and is hereby, sustained.
For the reasons herein assigned, the judgment appealed from is set aside and annulled, and plaintiff's suit dismissed as in case of nonsuit, at his cost.