123 So. 724 | La. | 1929
This case comes before us by appeal from a judgment sustaining an exception of no cause of action. The suit was brought for damages for breach of an agreement to enter into a contract of lease.
It appears from the allegations of the petition, which the exception of no cause of action necessarily admits to be true for the purposes of the exception, that on January 9, 1928, plaintiff entered into an agreement in writing with R.H. Fishel and Clarence Dryer, the defendants in the case, to lease a certain building in Monroe, La., at a monthly consideration of $450 for the first three years and at a monthly consideration of $500 for the next two years; that the lease was to begin when certain alterations and improvements were completed; that in the written agreement plaintiff bound itself to make these alterations and improvements at a sum not to exceed $5,500; that it was further agreed that the contract for the alterations and improvements might be let for a sum not to exceed $7,300; that defendants agreed to pay the costs of the alterations and improvements in excess of $5,500 up to $7,300; that defendants agreed to present plans to make the alterations and improvements immediately upon the signing of the agreement to lease, and to sign the lease agreed upon immediately upon the letting of the contract for the alterations and improvements.
The petition further discloses that defendants selected H.W. Smith and associates as their architects and presented plans as agreed upon; that plaintiff then proceeded to obtain bids for the work to be done, and upon receiving bids let the contract to the lowest bidder for $7,275, or $25 less than the maximum price agreed upon by the parties to this *1097 suit; that plaintiff then prepared and executed a lease embodying the terms agreed upon and presented it to defendants for execution, but that defendants failed and refused to comply with their agreement to execute the lease; and that, after repeated efforts to induce defendants to comply with their obligation to execute the lease, plaintiff put defendants in default, and notified them that it would take steps to lease the building to other tenants and would expect defendants to compensate it for the loss and damage sustained.
The petition then discloses that, after ordering the cessation of the making of the improvements, and that, after making due and diligent efforts to lease the building, plaintiff was unable to lease it until September 1, 1928, when it obtained a tenant for the term of five years at a monthly rental of $400 for the first three years and $450 for the last two years. The petition then details the damages suffered, and prays for judgment in the sum of $5,500, with legal interest from judicial demand.
In response to a prayer for oyer, plaintiff produced the contract sued on. Its provisions are in accord with those stated above.
The exception of no cause of action rests upon the ground, to quote from defendants' brief, "that the instrument sued on is only what it purports to be — `An agreement to lease'; and that they (defendants) had the right to withdraw therefrom at any time before the contemplated lease was signed."
In Evans v. Dudley Lumber Company,
Defendants rely largely upon the case of Woodville v. Kantrowitz,
For these reasons, the judgment appealed from is annulled and set aside, the exception of no cause of action is overruled, and the case is remanded to the lower court to be proceeded with according to law.