16 La. 467 | La. | 1840
delivered the opinion of the court.
The defendants are appellants from a judgment rescinding the sale of a tract of land to the insolvent, William Smith, for non-payment, of the price. In this court they have submitted their case on the following points, to wit:
1. That there is neither allegation nor proof that the defendants have been putin default, and until'that is shown the contract cannot be rescinded.
2. That the price has been paid by the notes given by the insolvent, the deed of sale describing them as given and received “ in payment ” of the price.
3. That the judgment is silent as to the notes received by plaintiff from her vendee, nor does the petition contain any offer to return them.
I. The record shows that sundry notes, drawn by the firm of Richard Pearse & Co., to the order of and endorsed by Smith, who was a member of the firm, were given in payment of the property, and that both the firm and Smith having failed before the maturity of these notes, they were all protested for non-payment. We consider the demand of the notary who made the protest, a sufficient putting in default to pay the price ; it is one of the modes pointed out by article 1905, of the Louisiana Code.
II. Whatever effect might otherwise have been given to the expressions “ in payment ” of the price, to be found in the deed of sale to the insolvent, they must be controlled by other parts of the act, in connection with which they are to be taken and understood ; the notes given by the vendee were identified with the act of sale by ne varietur by the notary, and a mortgage was retained on the property to secure their payment at maturity; such a stipulation is inconsistent with the idea that the notes were received by the vendor as an absolute payment. 1
1 III. As to the return of the notes received from the insolvent, they have all been filed with the deeds of protest in this suit as evidence of his failure to pay the price; this we consider a sufficient return and surrender of them by the plaintiff.
We have been asked by the appellee to amend the judgmerit so as to allow her damages, and in support of this demand we have been referred to article 2543, of the Louisiana Code. This law is, we think, wholly inapplicable to the present case; it contemplates a real diminution of value m the thing sold in consequence of waste or deterioration, caused by the acts or neglect of the vendee during the time of his possession, while the plaintiff predicates her claim for ^ve thousand dollars damages on the diminution of value of iand, owing to the general fall or depreciation of this of property. 1 he price of eighteen thousand dollars, stipulated in the sale of this land, is represented by the witnesses as extravagant, so much so, that one-half of this sum 0 could not at this day be obtained for it. They stale at the same time, that in their opinion the intrinsic value of the ProPe,rty has remained unchanged. It appears moreover, that the plaintiff has never ceased tobe in possession of her land ; with these facts before us, we are unable to say that she has suffered any loss, except the handsome price she would have received, had her good fortune led her to a treat with a solvent purchaser; she cannot seriously expect us to compensate to her a loss of this kind, at the expense of the other creditors of Smith.
It is, therefore, ordered, that the judgment of the District Court be affirmed, with costs.