| La. | Apr 15, 1849
The of the court (King, J. absent,) was pronounced by
The remedy through the medium of the folie enchére has been properly characterized as “summary and severe,” and from this consideration the conclusion is fairly derived that it ought to be confined to cases clearly coming within the provisions of the law, and in which its requisitions have been observed. See Second Municipality v. Hennen, 14 La. 586.
Article 2589 C. C. seems to us to contemplate that the terms of the folie
The plaintiff contends that the change was attributable to the default of the defendant; that he delayed the plaintiff until the note which was to have been assumed had matured. But this is is not an answer to the objection. The law gives three remedies against the defaulting purchaser, the action for specific performance, the ordinary action for damages, and the action based upon the folie enchére, which itself liquidates the damages, if properly conducted. If the seller choose the latter remedy, he must take it as it is given, or not at all. When both sales are made upon the same terms the difference is not an inequitable standard of the injury sustained by the defendant’s failure to fulfil the contract. But when the terms are changed, a new element is introduced to affect the result; for daily experience teaches us that, in consequence of the deficiency of capital, and the necessity of the buyer’s reliance in some degree upon the efforts of his future industry, sales of real estate are made more advantageously, in point of price, upon credit than for cash. Here the property was sold upon a partial credit, in May, 1843, for $1,375, and for cash in August, 1844, for $660. We cannot say that this discrepancy was not in some degree owing to the difference of terms; and the inflexible standard of the folie enchére, by which we are called upon to measure the defendant’s liability, is consequently, in the present case, unsafe and untrue. Had the remedy been pursued according to the requisitions of the law, judicial discretion would have been excluded by a conclusive legal presumption. As it was not, the legal standard has not been created, and there is no basis for the present suit.
Entertaining this opinion, we have deemed it unnecessary to consider the question of the effect of the lapse of time upon the plaintiff’s right to proceed by the folie enchére, and other points made by the defendant.
It is, therefore, decreed that the judgment of the District Court be reversed, and that there be judgment as in case of non-suit; the plaintiff paying costs in both courts.