
    
      LLORENTE vs. GAITRIE.
    
    Appeal from the court of the third district.
    The obligor in a penal obligation, one of the ™ribedPbythe code, before penalty can be exac
   Porter, J.

delivered the opinion of the , . , ' , eourt. The plaintiff agreed to sell to the a house and lot for two thousand eight ' o hundred dollars, payable on the first of April* jig27? possession to be given on that day. The contract contained a stipulation, .that if either of the parties failed to comply with his agreement, he should pay five hundred dollars.

The plaintiff avers he was willing and ready to deliver the house, but that the defendant refused to receive it The petition prays judgment for the penalty, and one thousand dollars damages.

The answer states the plaintiff neglected or refused to comply with his agreement; alleges the contract to be usurious, and prays judgment by way of reconvention for S500, the damages which the defendant alleges he has sustained.

The case was tried by a jury in the court below, who found a verdict in favour of the plaintiff for five hundred dollars. -The court confirmed it, and the defendant failing to obtain a new trial, appealed.

In addition to the grounds of defence disclosed by the answer, the appellant has contended the action must be dismissed because he was not put in delay previous to its institu-

Our code declares, that the penalty is forfeited only, when he who has obligated himself, either to deliver, to take, or to do a certain thing, is in delay. La. Code, 2122.

And it further provides, that when by the terms of the contract, or the operation of law, the party is not in delay, he can only be put in it by the act of the obligee, who must demand the performance of the contract by the commencement of a suit—a demand in writing—-a protest by a notary public—or a verbal requisi” tion in the presence of two witnesses. La. Code, 1905.

Now the evidence on record does not shew the defendant was put en demeure in any of the modes prescribed by the statute. His letters which were read on the trial merely establish that after the time for performance had elapsed, he wrote to the plaintiff thanking him for his indulgence, and promising to comply with the contract according to his wishes.— Such acknowledgments are neither evidence of the demand the law requires, nor a waiver of it, and the placing of the defendant in delay being made an indispensable prerequisite to sustain an action ef this kind, the plaintiff canno* recover. Code, 1906.

The counsel has contended that from the - which was given to the. agreement the promiSe to pay the penalty was the principal obligation, and that no demand was necessary, The contract after containing the stipulations of sale, price, <^*c. concludes thus: “and it is hereby agreed that if any of the contracting parties refuses to fulfil the contract as hereby agreed and understood, that the party refusing so to do, is to pay the other party the sum o^ five hundred dollars.”

We think, on the contrary, that by the terms used, the penalty inserted was not the principal obligation, but a secondary one to inforce the primary obligation. This was evidently the intention of the parties, as it is clearly the legal interpretation of the contract. The 2116, 2117, and 2118 articles of the code which appear to have been taken from these passages in Toullier cited by plaintiff, satisfactorily, we think, sanction this view of the subject. La Code, 2116, 2117, & 2118. Toullier, vol. 6, Lit. 3, tit. 3, sec. 6, 799, a 804.

It is therefore ordered, adjudged, ar-d decreed, that there be judgment against the plaintiff, as in case of nonsuit, with costs in both courts.  