Dean v. Frellsen, 23 La. Ann. 513

Dean v. Frellsen

23 La. Ann. 513 | La. | 1871

Taliaferro, J.

The plaintiff sues for $23,901 50 as damages arising from the alleged non-fulfillment on the part of the defendant of the following obligation: “We, the undersigned, Henry Frellsen, on tho first part, and M. W. Dean and J. 0. Pearce, on the second, hereby acknowledge to have made the following agreement: Henry Frellsen *514sells to M. W. Dean and J. 0. Pearce all his claims against Govy-Iloocl, and agrees to subrógate them to all his judgment and mortgage-rights for the consideration of thirty-three thousand dollars ($33,000),. which amount M. W. Dean and J. O. Pearce hereby promise to pay toll. Erellsen as follows, viz: Ten thousand dollars within sixty days; the balance of twenty-three thousand dollars in two yearly installments, bearing eight per cent, interest per annum from date, and they agree to secure the above imyments to the satisfaction of General Edward Sparrow. It is mutually agreed that the amount due to Govy Hood, out of tile proceeds of judicial sale of the G. G. Willson planta — ' tion to II. Frellsen, shall be credited on the above judgment against-Hood. H. ERELLSEN.

New Orleans, August 25, 18G8.'’

This obligation the plaintiff alleges the defendant failed to comply with, to his detriment and injury, and he prays judgment in damages-against the defendant as before stated.

The answer is a general denial. The defendant admits that having-judgment against Govy Hood, of the parish of Carroll, for a large sum of money, he had caused execution to issue thereon, and that the-property of Hood was seized to satisfy the judgment; that while the-execution was in the hands of the sheriff, did agree to transfer his rights against Hood to Dean and Pearce, on condition that within sixty days from the twenty-fifth of August, 1868, they paid him ten thousand dollars in cash, and secure the payment of the remainder in. two equal annual installments, the said Dean and Pearce to secure all these payments according to agreement to the satisfaction of Edward. Sparrow, the defendant’s attorney, in the parish of Carroll. The defendant avers that the plaintiff and Pearce having .entirely failed on. their part to comply with the conditions precedent to his obligation to tfansier, he was released, and is in no manner bound to the plaintiff for anything.

The defendant had judgment in his favor, and the plaintiff appealed.. The plaintiff contends, and aimed to show that the defendant, by-transferring his claims to Hood, under an agreement with him, was-guilty of an active violation of the contract on his part, which rendered a putting in default by the plaintiff unnecessary.

All the evidence adduced fails to convince us, as it failed to convince the judge a quo, that the plaintiff has succeeded in the effort. He certainly failed to comply on his own part, and he has shown no-satisfactory reason why it became unnecessary for him to put the-defendant in default.

It is therefore ordered, adjudged and decreed that the judgment off the district court be affirmed with costs. •