29 La. Ann. 286 | La. | 1877
The opinion of the court was delivered by
Tlio plaintiff sues for damages for non-fulfillment'of contract of sale of certain property .in New Orleans. The defendant had permitted his property to become imperiled by the accumulation of arrears of taxes, unpaid for several years, and finally arranged with the city for a sale of several portions of it, which were duly advertised. At this sale the plaintiff bought an improved lot for three thousand two hundred dollars, complied with the terms by paying on the spot ten per •centum of the bid to the auctioneer, and received the proces verbal of the adjudication. He then tendered the residue of the cash payment, which was by the terms of sale one-half of the bid, and demanded his title. Lacroix never gave it to him, nor offered or attempted to give it to him.. Shortly afterward the same property was sold at the instance •of a creditor of Lacroix, and bought by that creditor. Plaintiff then sued for two thousand dollars damages, and the return of throe hundred and twenty dollars, the sum paid by him at the adjudication.
In other proceedings by rale, the notary was compelled to return this last sum, or what lie had left of it, which he did after judgment to that effect, so that the. demand for damages is the only question before us. The defense is that he could not make a title, because of incumbrances upon the property, or rather this defense was made under the general •denial.
The first material question for consideration is the nature of the claim <of plaintiff, for if the object of his demand bo the recovery of remote or consequential damages, or for profits which might have been made had -the contract been completed, we should reject it. Damages for supposed profits, based upon the speculative opinions of witnesses, will not ho •allowed. Gobet vs. Municipality, 11 An. 300; Minor vs. Steamer, 13 An. 564.
Unquestionably, a part of his demand is based upon the supposed loss >o'f profits, and to sustain it much testimony is offered to show that he could shortly afterward have sold the property for an increased price, one witness declaring that five thousand dollars could have been obtained for it. Discarding this means of estimating injury alleged to have been sustained by him, we have the fact in proof that the property was .actually sold a few weeks after the adjudication to the plaintiff for four
Our Code declares that the adjudication completes the sale, and tho purchaser becomes tho owner of the property -adjudged (G. C., art. 2586, new No. 2608), and t-liat in every contract of sale there is a correlative right and obligation, fór as tho vendor may hold the vendee to his bid, and make him responsible for tho difference in price in a second salé, so tho vendee may hold tho vendor to his engagement, and make him responsible in damages for losses ho may sustain, or profits lie may lose. O. C., art. 2589 et seq., new No. 2611.
The sale was instigated by Lacroix, and ho was present at the public cry of the property and its adjudication. He not only knew tho incumbrances upon it, but tho sale was made under an agreement, the object of which was to relievo his whole property by selling enough to lift these incumbrances. Tho purchaser demanded his signature to the deed, and it was for him to object to receiving tho title, rather than for tho vendor to refuse to execute it. If tho purchaser chose to risk the defect of the title, when no material information was withhold from him by tho vendor, it was not for the latter to complain, and ho certainly can not make it a ground of refusal to comply with his contract to sell. Reciprocal obligations wore created between these parties by tho sale. The plaintiff complied with all that were assumed by him, and all that the law imposed on him by reason of his bid. The defendant did nothing, except to entice the plaintiff into assuming a contract which ho made no effort to perform.
The Code declares in general terms that tho damages due for a breach of a contract are tho amount of tho loss tho vendee has sustained, or tho profit of which he has been deprived (art. 1928, new No. 1984), and a recent writer on this subject (Benjamin on Sales, 665,) thus enunciates tho rule as well settled, quoting the words of a leading case: “'Wheretwo parties have made a contract which one of them has broken, tho damages which tho other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered, either arising naturally, i. e., according to tho usual course of things, from such broach of contract itself, or such as may reasonably bo supposed to have been in contemplation of'both parties, at the time they made the contract, as the probable result of tho breach of it.”
We think the sum already mentioned by us tho proper amount of damages in this ease. We are asked to include in it twenty-four dollars, .as tho deficit which the notary failed to pay over under the rule, that sum having been consumed in paying costs and commissions, but wo find no warrant in tho record for that. The proof seems to have been omitted.
It is therefore ordered, adjudged, and decreed that tho judgment of
