Same Case

| La. | Jun 15, 1843

Bullard, J.

A re-hearing was allowed in this Case, upon the question, whether there was such a putting of the defendant in default, previously to the institution of this suit, as the law requires, as an indispensable pre-requisite to the recovery of damages, or to the rescission of contracts. The putting in default, consisted in the counsel of the plaintiff writing a letter to the defendant, Willcox, demanding of him the raising and cancelling of the mortgages existing on the property sold by him to. Sewell, and informing him, that suit would be instituted against him for the annulling of the contract of sale, in the event of his refusal or neglect to cancel said mortgages. On the former argument, this appeared to us. insufficient, because it was not accompanied by an offer, on the part of the plaintiff, to perform the obligations which he had assumed by the same commutative contract.

It is clear, it was not necessary to make a tender of that part of the price, which was to become due after thirty days demand. No one is obliged to mate a tender of money, which the person to whom the tender is made, has no right to require or receive ; and until the mortgages were cancelled, Sewell was not bound to pay. He had a right to deposit in the Improvement Bank, and stop the interest. But an offer may be made without a tender. In the French jurisprudence, from which we suppose this doctrine is copied, offers are either labiales or réelles. The latter corresponds to our tender, which, when followed by consignment, amounts to a payment. Merlin Repert. verbo Offre. But it may be said, if this be merely a lip offer*~-z simple declaration of willingness on the part of the person making it, to comply with his part of the obligations created by the contract — it is doing a very vain thing — a thing which can be followed by no results. There is but one effect which we can imagine might result from such an offer, which is, to preclude the person making it, from afterwards setting up any new ground, ot excuse, for not complying with his engagement. Whatever may have been the policy of the law, or the motive of the Legislature — and we have, on more than one occasion, expressed our regret that such subtleties should have found their way into the code — the question with us is, are we authorized to disregard that provision of the code, which requires, on the part of the plaintiff, an offer to perform his obligation, as a preliminary to an action of rescission of. a commutative contract. We think we cannot dispense with it.

'It is therefore ordered, that the first judgment rendered remain unchanged. '