124 F.2d 656 | 5th Cir. | 1942
This appeal is from a judgment dismissing appellant’s suit to enforce specific performance of a contract or, in the alternative, to recover damages for the breach thereof, on the ground that the complaint failed to state a cause of action upon which relief could be granted. The sole question for our decision is the correctness of that judgment.
On November 17, 1931, the appellant, L. A. Goudeau, contracted in writing to purchase a tract of land in Louisiana, together with the tools, stock, seed, and feed, from Paul LeBlanc. Appellant agreed to pay $15 of the purchase price upon the acceptance of the offer, and an additional $4,985 in cash upon being furnished an acceptable abstract of title and a deed. It was agreed that, since Goudeau did not have available the purchase price, payment thereof might be deferred until he could collect a judgment then owing to him, except payment could not be made after December 1, 1932. LeBlanc agreed to furnish the abstract, to sell the property, and to pay the taxes due for the year 1931.
It is alleged that LeBlanc never furnished the abstract to appellant. It is not alleged that Goudeau ever called upon LeBlanc for the abstract or ever tendered to him the balance of the purchase price. The sale was not consummated, and it is not alleged that anything was done pursuant to the agreement until 1940. LeBlanc died in 1934, and in 1940 Goudeau announced to LeBlanc’s successors in title his readiness to perform his obligations under the contract, and demanded that they perform those derived by them from LeBlanc. They refused, and this suit was instituted.
The sales agreement was a commutative contract imposing reciprocal obligations.
Even in commutative contracts where the reciprocal obligations are not to be performed at the same time, a party wishing to put the other in default must himself
Neither may the denial of specific performance be reversed. This remedy is not favored in Louisiana law, and cannot be claimed as an absolute right,
Affirmed.
Articles 1768, 1770, Louisiana Civil Code.
McMillan & Co. v. Mills, 3 La.App. 9; Eugster v. West, 35 La.Ann. 119, 48 Am.Rep. 232; Cousin v. Schmidt, 143 La. 843, 79 So. 427; Escat v. Zanca, 177 La. 524, 148 So. 698.
Vance v. Tourne, 13 La. 225; Stewart v. Presley, 22 La.Ann. 514; Art. 1914, Louisiana Civil Code.
Defee v. Covington, 37 La.Ann. 659; Landeche v. Sarpy, 37 La.Ann. 835; Livingston v. Scully, 38 La.Ann. 781; Murray v. Barnhart, 117 La. 1023, 42 So. 489; Penick & Ford v. Waguespack & Haydel, 148 La. 39, 86 So. 605; Bussey v. Wise-Miller, 172 La. 198, 133 So. 443; Art. 1933, Louisiana Civil Code.
Gobet v. Municipality No. 1, 11 La.Ann. 300; Bennett v. Fuller, 29 La.Ann. 663; Penick & Ford v. Waguespack & Haydel, supra.
Solomon v. Diefenthal, 46 La.Ann. 897, 15 So. 183; Youngblood v. Daily and Weekly Signal Tribune, 15 La.App. 379, 131 So. 604; Art. 1927, Louisiana Civil Code.