Banks v. Hyde

| La. | May 15, 1840

Morphy, J.,

delivered the opinion of the court.

The defendant appeals from a judgment condemning him to pay twelve thousand dollars, the difference between the price at which certain property was adjudicated to him, and that which it brought on a resale at public auction, on his refusal to carry into effect the first adjudication.

The view we have taken of this case, makes it useless to examine the grounds on which the defendant has endeavored to justify his refusal to execute the sale.

From the evidence, it appears, that when the property was put up for sale the second time, it was adjudicated apparently to Joseph E. Whitall, but, in reality, to the plaintiff himself. The name of the former was given in to the auctioneer, as being the purchaser, without his knowledge or consent, and shortly afterwards the property was reconveyed to the latter. No consideration was given or received by Whitall, in either sale. He declares, explicitly, that he always thought he was holding the property for Banks, whose agent he was. , . 7L i , . , , , , . , The plaintiff must then be considered as having himself become purchaser at this second sale, qui facit per alium, facit per se. ■*

. .. . The first adjudication was for nineteen thousand dollars ; the second for seven thousand dollars. We cannot consider the difference as a loss to plaintiff. If it' was allowed him, he would be receiving his property back, and besides, a sum °f twelve thousand dollars. A vendor must take his choice, either to regain possession of his property, or to insist on the payment of the price by bringing suit against the purchaser, or by resorting to the course authorized by article 2589 of the * . ° J . , Louisiana Code. This article provides that the thing sold *s to be again exposed for sale, as if the first adjudication had never been made. If, at this second exposure for sale, the ’ 1 vendor buys in the property, he must be considered as withdrawing it, or renouncing the right of reselling, for the account and risk of the first purchaser. He can claim of the latter, no deficiency of the price when there has been no resale. The plaintiff could no more buy at this second sale, than he could at the first. Louisiana Code, article 2418; See the recently decided case of Municipality Mo. 2 vs. Hennen, 14 Louisiana Reports, 559.

A vendor, on his vendee’s failing to comply, must take his choice, either to regain his property, or insist on the payment of the price by instituting suit.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be avoided and reversed, and that ours be for the defendant, with costs.