Moreau v. Chauvin, 8 Rob. 157

Moreau v. Chauvin

8 Rob. 157 | La. | 1844

Morphy, J.

The plaintiff seeks to rescind the sale of a slave made to him by the defendants on the 5th of Majq 1841, on the ground that they had failed to comply with the conditions and obligations of their contract. He alleges, that at the time of the sale there existed on the slave sold to him a mortgage, which the defendants bound themselves to raise and cancel, within forty days from the 8th of April, 1841; that his mortgage was a general one, existing against their vendor, the widow Franqois Xavier, as tutrix of her minor children, which she in her sale to them had obligated herself to convert into a special mortgage, so as to release the slave from that incumbrance, within the above mentioned delay; that this obligation of hers was assumed by the defendants; and that although the forty days have long since expired, and the price of the sale has been paid, this general *160mortgage yet continues to exist, and prevents him, the plaintiff, from disposing of the slave, whom he is.desirous of selling, &c. The defendants pleaded the general issue, and the want of amicable demand. There was a judgment below rescinding the sale, and decreeing the return of the purchase money, with legal interest from judicial demand, on the plaintiff’s restoring or tendering the slave to the defendants. The latter have appealed.

The petitioner’s right to obtain the recision of the sale cannot be questioned. The contract is a synallagnatic one, in which the resolutory condition is always implied, in case either of the parties fails to comply with his engagement. The party in regard to whom the contract has not been executed, has the choice either to compel the other to the execution of the agreement, if it be possible, or to demand its dissolution, with damages. Civil Code, arts. 1920, 2041. To determine whether the failure to execute an engagement authorizes a suit for the dissolution of the contract, it is only necessary to consider whether the engagement is such that the contract would not have been entered into without it. In the present case, it is not to be presumed that the plaintiff would have bought this slave, had the vendor not undertaken to have the general mortgage existing upon the slave removed. Pothier, Traite de la Vente, No. 475. But the counsel for the appellants urges, that the plaintiff cannot maintain this action, because he has not put the defendants in mora, pursuant to the several provisions of the Civil Code, which require this formality as a pre-requisite to the recovery of damages, or the recision of a contract. Arts. 1905, 1906, 1907. There has not been, on the part of the plaintiff, a strict compliance with these articles, in the manner in which the defendants have been called upon to execute their contract; but the evidence shows, that they were several times requested to have the mortgage raised; that the plaintiff was prevented from selling the slave, by reason of this incumbrance; and that more than eighteen months after the expiration of the time within which it was to have been removed, the widow Xavier, although often solicited by the defendants to comply with her engagements to them, had instituted no proceedings whatever to give a special mortgage, in lieu of the general one she had agreed to raise. It appears to us *161that, in a case like the present, it was not necessary to put the defendants in default in the manner pointed out by the articles of the Code relied on by the counsel. The object of the putting in default is, to secure to the creditor his right to demand damages, or a dissolution of the contract, so that -the debtor can no longer defeat this right, by executing or offering to execute the agreement. After the debtor has been put in mora, his offer to execute his engagement comes too late, and cannot be listened to. 6 Toullier, No. 255. But where the party is unable to comply with his obligation, when the thing to be performed depends on the will of another person, over whom he can exercise no control, the contract is dissolved of right, and the formality of putting him in default would be a vain and useless ceremony. Lexneminem cogit ad vana. Civil Code, arts. 2041,"2042. Garcia et al. v. Champomier et al. 8 La. 522.

There is error, however, we think, in that part of the judg-men which allows the plaintiff legal interest on the purchase money, from the day of judicial demand until paid. It is shown that the slave is yet in his possession. His services may be regarded as a full equivalent for the use of the money which the defendants have had. As long as she is not restored or tendered to them, they are not liable for any interest on the price they have received.

It is, therefore, ordered, that the judgment of the District Court be affirmed, so far as it annuls the sale of the slave Mary, and condemns the defendants to reimburse to the plaintiff the sum of seven hundred and fifty dollars, on the plaintiff’s restoring or tendering to them the said slave; and that it be reversed so far as it allows legal interest on that sum from the day of judicial demand. And it is further ordered, that the defendants do pay legal interest upon the said sum of $750, from such time as may be fixed by the judge below, upon satisfactory proof being made before him that the slave Mary has been restored or tendered to them by the plaintiff; and that, for this purpose, the case be remanded for further proceedings. The costs of this appeal to be borne by the appellee.