No. 11,389 | La. | Apr 15, 1894
The opinion of the court was delivered by
- This is an appeal by plaintiff from the judgment. of the lower court dismissing the suit against the defendant, his mother.
The basis for the demand is supposed to be furnished by a paper-executed by the plaintiff before a notary, acknowledging the receipt by plaintiff of three thousand five hundred dollars from the succession of his father, and the promise of the defendant, in consideration of that paper, to lend plaintiff twenty-five hundred dollars for two years without interest. The cause of action is, however, amplified by the allegations in the petition, that plaintiff’s claim against his father’s succession was disputed by the mother and his co-heirs; that to settle the dispute he was induced to acknowledge he had received three thousand five hundred dollars, when, in fact, but one thousand dollars had been received by him from the succession, and. that he was “enticed” to make the false acknowledgment by the-promise of his mother to lend him twenty-five hundred dollars. The relief demanded is a judgment against defendant for the amount.
■ ■ The brief for plaintiff treats the, suit as one for.specific performance. ‘ The relief usually accorded for the breach of contract is damages. Specific performance is decreed only in exceptional cases. It is difficult to conceive, of any,, injury arising from the breach of a pontract to pay or lend money that can not be repaired by damages. Our code declares, when the object of the contract is anything but the payment of money the damages are the loss sustained, or profits of which the party has been deprived; and as to money obligations damages for delay in- performance,, are limited to interest. Again, the Code declares in ordinary cases the breach of .the,contract to do, entitles the party aggrieved only to damages,but where this would be inadequate compensation specific performance will be constrained, if performance is in the power of the party who has contracted the obligation. We think that if plaintiff had any cause of action he has no basis to demand specific performance of his supposed contract; 0. 0., Arts. 1934; 1935, 1927; 1 Story’s Equity, p. 714, as to specific performance.
But beyond the, question as to the relief to be awarded for the breach of the contract of loan, there is, in our opinion, no contract in this case. The supposed consideration- is the plaintiff’s acknowledgment of the advances made him- by his 'father. That acknowledgment is manifestly, no basis whatever to support the asserted promise of his mother to lend hiih twenty-five hundred dollars. If there was any benefit or advantage of any kind accruing from that -acknowledgment, that benefit or advantage was not derived by the mother. It might be his co-heirs could avail of the acknowledgment, 'but not his mother, whom he sues. If, as the plaintiff states in his petition, the acknowledgment is untrue, it is not easy to perceive it would serve any purpose. Our conclusion is there is no cause of action stated in plaintiff’s petition, either in respect to the asserted contract or the demand for a decree annulling his acknowledgment'. Oivil Code, Arts. 1779, 1893.
It is therefore ordered, adjudged and decreed that the judgment of the lower court be affirmed, with costs.