18 La. Ann. 470 | La. | 1866
On tho 22d of January, 1859, Mrs. Mario Analse Dreville, by act under private signature, leased to 3?. D. Collins two lots of ground with all tho appurtenances, from the 1st of Fobruary, 1859, until the 1st of February, 1862, at the rate of $25 per month, payable every sixty days, in his notes of $50 each. The lessee obligated himself to build on tho property a cottage house for the use of his family, and said buildings to be kept in good order and to revert to the owner of the lots after the expiration of the lease, on the 1st Fobruary, 1862; and it was expressly
This lease was transferred by the lessor on the 11th May, 1860, to the plaintiffs, in the following words written on the private act of lease: “I hereby transfer this loase, such as it is, to William Wolls, against P. D. Collins.” Signed by the lessor and her husband.
By public act of sale passed on the 11th May, 1860, the said plaintiff bought of the said lessor the said leased lots, together with all the appurtenances, buildings, privileges, etc. In this act of sale, the vendor declares the dispositions contained in the lease, and transfers the same, such as it is, to hor vendee.
The lessee also transferred the lease to Frank Truxillo, as follows:
New Orleans, October 1st, 1859. I hereby transfer all my interest in and to the within lease, unto Mr. Frank Truxillo, for value received, and also guarantee that said Mr. Frank Truxillo will comply with all the stipulations of said lease. Signed by P. D. Collins, Frank Truxillo.
Now, this suit is brought by the transferree of the lease against the original lessee and the sub-lesseo, to set aside and annul the lease, and to recover possession of the property leased, on the grounds that P. D. Collins, the original lessee, has violated the stipulations contained in said lease in two particulars: in not paying the rent when due, and in subleasing the premises without the written consent of the lessor; and that he has faded to' erect a cottage house for the use of his family, and the buildings were to revert to the owner of the lots, etc.
He prays that both the original and the sub-lessee be cited and be condemned in solido to deliver to petitioner the possession of the leased premises.
The answer contains a general denial, but admits the lease, and that the same has been transferred to said Frank Truxillo, but with the consent of the lessor by her husband L. Emmerling, the head of the community, for himself and wife, in whose name the property stood, he being also agent, and having the administration of the property in question, with her consent. That respondent has been always ready and willing to pay the rent; but since the said Wolls has acquired the property, he has failed to make an amicable demand for said rent, and that respondent made legal tender of said rent to said Wolls, who refused to receive the same, etc.
On the trial of the case below, the defendant offered in evidence the written consent of the lessor’s husband, authorizing P. D. Collins to transfer the lease in question to Frank Truxillo; it was objected to, and the objections sustained by the Court.
We are of opinion that the Court decided correctly. The property was
There are other bills of exception which, in our opinion, require no decision, as the result would be the same on the merits of the case.
Two grounds are clearly established:
1. That the lessee has failed to pay two notes given for the lease; they were payable at the Mechanics and Traders’ Bank, and protested for non-payment on the 8th August, 1860.
The transfer of the sub-lease by P. D. Collins to Frank Truxillo is clearly proved, and admitted besides, and the dofondant has failed to show the consent in writing of the lessor.
2. Two of the notes were not paid for want of funds in the bank whore they were payable and protested.
But we think that the plaintiff, in order to recover, should have done more, by alleging and proving a tender of the notes given for the unexpired balance of the lease at the time he claimed the dissolution of the same. It is in evidence and admitted that, when the parties entered into said contract of lease, the lessee, P. D. Collins, executed his notes for the whole term of the lease, to his order and by himself endorsed, payable at the Mechanics and Traders’ Bank, and these notes are shown to have been transferred and delivered to the plaintiff when the lessor sold him the property leased together with the lease.
It is also in evidence, and admitted in the appellee’s brief, that the cottage house was built. The plaintiff has failed to show what has become of the unaccrued rent notes; they have not even been produced on trial as a tender. The plaintiff could not expect to take the property back with the cottage house, and retain also the notes. A lease is a commutative contract, and as to the resolutory condition, is governed by the dispositions of Arts. 2040, 2041. Duranton, vol. 17, 110, 89.
It is therefore ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed. It is further adjudged and decreed, that there be a judgment of nonsuit against the plaintiff, in favor of the defendants, and that the plaintiff and appellee pay costs in both Courts.
