
    Mrs Katherane Alfortish VS Elias Pailet
    No 7850
    Court of Appeal Parish of Orleans
    macelsplel. J
   Dlnkelaniel. J

The substantial fasts In this case, briefly stated., are to the following effect.

Plaintiff bought from defendant a certain lot of ground for the sum of $600.- $10. cash and the balance on the installment plan of $1.35. per week. During a period of about six years plaintiff paid to defendant $341. when defendant sold the lot to another purchaser, claiming a forfieture of $341. under the terms of his contract.

Svera Defendant sdsckta, that since plaintiff had defaulted, as herein above alleged, he felt himself free to sell said lot to another person.

Plaintiff alleged in her petition, that by the terms of said oontraot, that the purchase price , as stipulated , should be paid in weekly installments of $1,35.¡ and it was further stipulated, that if she should not make any weekly payments for eight weeks, then, without default, the contract became null and void, and the payments made forfeited.

The defendant relies, in his answer, on his right of forfeiture, and admits the allegations contained in plaintiff's petition.

The record shows that this case was regularly fixed for trial from time to time anft for many weeks in the District Court. Beyond filing the contract of sale, on terms as stipulated by plaintiff, nothing else was done. On the final trial of the case, in the absence of defendant's Counsel, there was before the Court the document (failed an agreement to sell together with the testimony of plaintiff.and the receipts that she paid from time to time both to defendant and at times to his Attorney, the full 'amount claimed by her to which there was no denial.

It appears that the la3t payments made by plaintiff was made on November, 14th. 1916, and ifiPWigdfe# 533PWpSS subsequently on August, ál7, she was notified by the Attorney of defendant she must increase the weekly payments to §3. per week or else forfeit all she had paid, giving her four weeks in which to comply with the terms in the letter.

Defendant claimed in his answer, and as set out in his brief and in argument, that plaintiff is not entitled to the return of the money paid by her under her contract, because she had collected certain revenues, thfe amount of which has never been set out much less proven, and because there remained an unpaid balance , under the contract, which had not been paid.

He gather from t^e Skj55tXSK*»**i brief and also the argument of Counsel for defendant, that he complains against the action of plaintiff's Counsel for hav-ing prosecuted this ca3e to final judgment without Counsel being present at the time, and he asks this Court, for that reason, to remand the case back to the lower Court in Order that he might have an opportunity to properly present his evidence in that Court, in view of the faot that judgment was rendered against -his olient without his having an opportunity of presenting defendant 13 r i ght s.

It has been frequently held, that in the Civil District Court for the Parish of Orleans, oases, are regularly called and fixed for trial after answer filed. These fixings are posted, and it is a well established faot that Lawyers must, in order to protect their clients interests, see to these postings, prepare their cases and be ready for trial whenever same are called. T/.is was followed in this case. Pc3ting3 were had at regul -ar intervals, the cáse Wae fixed for trial several times, at times defendant's Counsel was present, but what-ier the oase ñas reached or aot this récord does not stow. But finally it was reacted in due course, and whether or not plaintiff's Counsel did or did not show -shat courtesy which the latter insists upon, is not a Eatter of defence only hut could he urged before the tribunal which had the case in charge. It is admitted, in oral argument, that this was not done and no application was made to the Judge for a nevT trial until after the judgment had been signed and became final, and then this appeal was taken.

In so far as courtesies are concemd, it is not for us to determine what same should he. We only have the law and the evidence to look after and to decide in accordance therewith. There was no violation in any respect of the law, and we are stisfied it Would not have been permitted by the Judge^if. there had been any. In faot, there is no complaint so far as the Judge is concerned. The only complaint being one of want of courtesy on the part of plaintiff's Counsel. With that matter we have no concern, and we donot decide for the reason there is nothing to decide.

An examination of the contract entered into between the parties convinces us, that no matter under what name it may he termed, it pose.eee all the elements of a sale as set out in our Civil Code, ahd id a sale in fact and is covered by dll the laws regulating sales/

The Supreme Court of this State has had occasion to ‘ pass upon contracts of this character, and has held same to be sales, no matter whether the parties so intended oonsiderred or not and even though they may not be contracts of sale. State Ex. Rel. Buckley vs. Whited & Wheless, 104 La. 125. Girault vs. Feucht, 117 La. 384. Rev. C. C. Art. 3439. Article 3561 of the Code also provides; "When the buyer does not pay the prioe, the seller may sue for a dissolution thereof. This course does not seem to have osen adopted in this case, however, tne seller without having taken any proceedings whatsoever soldy í5iSá88Se wSch was -che subject of this contract to a third party, and it is only when the other party to the contract, the plaintiff in this case, has been dispossessed of her property through her vendor-and sues to recover what sne paid on account thereof, that he comes into Court and claims non-fulfillment of her obligation, under that contract, and seeks to recover for these breaches*

we have been unable to find any authorities giving defendant any such rights, nor has any been supplied us by him* Those supplied in the supplemental brief, in our opinion, have no application to this case, nor are we of opinion, that under the law governing sales of this character, one could take back the thing sold and at the same time withold what has been paid on account thereof *

Defendant also complains, that while plaintiff sue3 for the return of/ the amount of money which had been paid on account of this contracyfrhen she had rever tendered to him the amount of balance due on same, the interest thereon, or even the amount of taxes paid on the property by him, Concesding this to be true, it is equally true, that defendant ha3 his remedy and could have asked for that relief, but he has failed to do sc. The pleadings show no reconventional demand having been mads by him for any of the things he new complains of, the first time in this Court, and not having prayed for that relief in the Court below, it is impossible for us, at this time, to grant this request.

The judgment of the District Court was in favor of plaintiff for the amount claimed by her. In our opinion said judgment is correct and is now affirmed.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be, and tns same is hereby affirmed. Defendant to pay cost3 of both Courts.

—Judgment .A if irme d-

MRS. ALFORTISH VS ELIAS PAILET

No. 7850

CHARLES P. CLAIBORNE, JUDGE.

I concur in the opinion and decree herein upon the ¶' additional ground that plaintiff has received no considerable: for the money she has paid the defendant. If the defendant herein, after agreeing to sell the land to the plaintiff had refused to deliver it, or if^for any reason^delivery had become impossible, there is no question that «could not have demanded the price of sale, because the consideration of the sale would have been wanting. I cannot see the difference between that cpndition of affairs and the condition existing here when the vendor^who has received several payments thereafter^ sells to another, the land he had sold to the plaintiff, and thus made the performance of the contract impossible ón his part. The same reason for Yfhich the vendor cannot demand the price of sale in the first case, prevents him from keeping the portion of the price he has received: want of consideration. It would be manifestly unconscionableJdrJjhn to retain both the thing sold and the price paid. % La,, 360: 15 La,, 390 But it is said that such is the letter of the feesd. That may b -C A be, but' the law'will not permit the execution of such a bond, and strikes it with nullity for two reasons.

I. -Article 0., C., 1893 says:

"An obligation without a cause can have no effect". Article 1896:
"By the cause of the contract in this section is meant the consideration or motive for making it &c". The majority of common law authorities recognize the

validity of the forfeiture clause in the contract under co: ler cop- . JQC.?7sf.. sideration. 9 "A»&-fr-EmcU Jinn.- Lhiwf 71-1; 35 rp&,704; M's 138^^2)«—

Státes not have any statute similar to this Article 1893 C. 0.

17 Baudry-Lac p 492 6 660; 24 Laurent p 342Í353; 43 Dalloz Inr. Gen. No. 1373, on the authority of a case from a Court of Appeal in Orleans, Mandeville vs Pays, decided in August 14, 1845 and reported in Dalloz-Jnris Gen., 1846, part 2, p 72, tell us that such a clause is valid. But tlMj reason-,,3 in that case, is not convincing.

It. But the claim of the defendant to appropriate the amount paid by plaintiff is usurious. The price due by plaintiff was $600; the amount paid by him from February 8, 1912 to • November 14, 1916, a term of four years and nine months, was $341.00* , The highest conventional interest allowed .by law upon would have been^at 8$f$228.00. The balance is usury* But we must not lose sight of the fact that at no time did the plaintiff owe the defendant $600.00. On February 8th, 1912, the defendant received $10 on acount^and in -1912, $60; in 1913, $101 ; in 1914, $85; in 1915, $60; ahd in 1916, $35.

Conventional -interest cannot exceed wight pe» cent . 0. C., 2924 (2895).

"If any person shall pay on any contract a higher rate of interest than the above as discount or otherwise, the same may be sued for and recovered within 12 months from the time of such payment", id
"The stipulation of usurious interest forfeits the whole interest". 34 A., 893 (897); 11 A., 511.

The defendant's argument is that the ampunt paid by plaintiff represented the damages agreed upon for a violation of the contract. The only contract violated by plaintiff Was her failure to pay $600 on the different dates mentioned in the contract. The law on this subject is correctly laid down in Griffin vs His Crs. in 6 Rob., 220 as follows:

"If, then, any penalty or damages were agreed on, it must necessarily have been entirely for the purchaser’s default or delay to pay the money. There is, in our law, a marked diffenence between the damages which may be stipulated for the breach of an obligation to pay money, and an obligation to give a thing or perform an act. iShere the object of a contract is anything but the payment of money, the parties may determine the sum that shall he paid as damages for its breach, and Courts of Justice will not interfere with such agreements; hut, on the contrary, will lend their aid to carry them into effect. C. C., 1928 (1901) (1895); 1934 (1928) *5. But it is otherwise , when the contract is to pay a sum of money. The law has provided, that no damages exceeding ten per cent on' the amount that was to be paid, can be stipulated. Article 1929 (1935) of the Civil Code declares, that "the damages due for delay in,the performance of an obligation to pay money, are called interest. The creditor íb entitled to these damages without proving any loss; and whatever loss he may have suffered, he can recover no more". Article 2895 (2924) of the same Code, provides, that "interest is legal or conventional; if conventional, it cannot exceed ten per cent". Any contract, or.agreement, therefore, into whatever shape it may be thrown, which stipulates for more than Z7/ & tne present instance, the penalty was enforced, the purchaser would be made to pay, for the three ^ears elapsed, thirty per cent over and above the interest of ten per cent, which has been running from the date of the protest. This penalty, or these damages, (the name is unimportant) would clearly be awarded for the inexecution of an obligation to pay money. As the law forbids that such damages shall exceed ten per ' cent per annum; on the amojmt of money which the debtor has bound himself to pay, the inferior Judge acted correctly, in our opinion, in refusing to carry such a stipulation into effect, and in allowing only legal interest, pursuant to Article 1933 of the Civil Code, (now 25S3 (2531)".
"By no device or shift the wit of man can invent, can more interest be taken, or profit made than that which the law permits, on a loan of money". 9 R., 125; 3 Lav, 393; 4 H., 498; 6 R., 216; 12 R., 178;;1 A., 62; 6 A., 615; 11 A,, 511, 638; 12 A., 20— / eS&ifafzéáf &<****&+
"There is r.o distinction as to whether interest he usurious or r.ot, between the interest stipulated upon the price for which property is sold*%and the interest which may he stipulated for the locr. of money". D A,, 615.

The penalty for usurious interest shall be the forfeiture of the entire interest. 34 A., 893 (897); 11 A., 638.

Tor these reasons, I think the forfeiture clause of the contract is illegal and of no effect.  