
    Charles F. Claiborne, Judge.
    MRS. G. K. HUCK VS. MRS. R. V. LEMIEUX & AL.
    No. 7704.
    March 8th, 1920.
   CHARLES P. CLAIBORNE, JUDGE.

This is a suit to recover $700 deposited hy a purchaser as earnest money.

The petitioner, Mrs. Buck, alleges that, through R. Mo. ^ —.Williams,a real estate agent, she sold to the defendant, Mrs. I_Rosalie Lemieux, wife of T, A. Lemieux, hy contract dated October 8th, 1917, for the price of $7000.00 the property No. 24 Morgan Boulevard; that the said Mrs. Lemieux deposited with 51c Williams $700.00;

* III that after entering into this contract and mating the deposit, as set forth, the said Mrs. Rosalie Lemieux refused to carry out the terms of said contract and take title to the said property and pay over the purchase price agreed upon, whereupon a clear and unencumbered title was tendered to her by plaintiff herein and she was called upon to accept same on a day and hour fixed; whereupon the said Mrs. Lemieux, through her attorney, L.A.Morphy, by letter dated October 26th, 1917, waived any formal tender of title and wrote that plaintiff was at liberty to bring suit whenever she desired";

that therefore the said Mrs. Lemieux has forfeited the said deposit of $700; and the plaintiff prayed for judgment for said amount against Mrs. Lemieux and R. Me Yfilli&ms.

The contract sued upon is in the following words:

"Ndw Orleans, Oct. 8 , 1917.
To R. Me Williams
Real Bsta-te Agent, City.
Dear Sir:-
I hereby offer, through you, to purchase the following property, to-wit; (Description) for the sum of Seven Thousand Dollars ($7000) on terms of cash. I will pay the taxes due and exigible in 1917 over and above the price of my offer, I will pay agent’s commission, x x x If this offer is accepted X will deposit in your hands ten per cent of the amount of above offer; - act of sale at my expense and before Notary Public, which I bind myself to sign and pay to vendor purchase price; provided the title is found on examination to be good, other wise the sale is of% and the‘deposit made by me shall be returned. In case I fail to comply'With above offer, if accepted, I agree to pay all the loss and damage the said,R. lie Williams may sustain by my failure to comply with my part of this agreement and also attorney’s fees which the said R. Me Williams may incur in suit to recover said loss and damages.
"Signed” Rosalie Lemieux"
^ I hereby accept the offer and terms made. At this point the following words are erased; "and will pay R. lío Williams a commission of _per cent for making sale".
"Signed" Mrs. Georgiana Krail Huck".
The receipt is in the following words:
^ New Orleans, La., Oct. 8th, 1917
Received from Mrs. R. 0. Lemieux Seven Hundred Dollars be~ ing a deposit of ten per cent of the purcha.se price of the property No. 24 Morgan Boulevard sold to her this da.y at private sale for the sum and price of $7000 Seven Thous.'.nd Dollars in accordance with terms of written offer and '/ acceptance,
"Signed" R. Me Williams,
Agent.
The tetter is as follows;
October 26th, 1917
Oliver S.Livaudais,
Dear Sir:
I have your l-etter of October 25th. with reference to the Lemieux matter. There is nothing to be accomplished, I assume, by any discussion of the matter in view of the apparent positions taken by the parties in interest; I do not think the statute you refer to has the application you suggest. Also, the seven hundred dollars actually psid was not Mrs. Lemieux’s money, but her husband’s, represented by a olMek of Lemieux Brothers & Company, Hr* inmisux’s fir», dram to the ord«r of B* Ho Willimas, and charged to the personal acaount of yrederiok A* lemieux, Hr*. Hoaalie 7* Lemieux* husband* If you wish to return Hr* Lamitux* Booty, and sue Sirs* Lemieux on her pre smalt personal oontraot, n>tbdng can, of course, prevent your doing that, for whatever suooeso yon My thinir is in store for you© Ton may oonaider that your formal tender of title is waived, and that yon are at liberty to bring suit whenever yon desire* I remain, very truly yours
“Signed» L. A. Morphy»

fhe defendant, Bosalie Y. Lemieux, wife of Xredsriok A Lemieux and the said irederiok A* Lemieux excepted to the petition on the ground that it was defedtlve In not malting the eaid irsderiok A* Lemieux a party to the suit, end that it disolos-ed no cause of action against Bosalie Y. Lemieux*

Shese exceptions were overruled* Act 94 of 1916 p 212; Act 244 of 1918 p 435*

M. Lemieux on Haroh 19th, 1918, then answered* she admitted that she signsd the oontraot above mentioned; she admitted tbs deposit of $700, but alleged that aald sun did not belong to her but to her husband; she admitted the allegations of Article in copied above; ehe further alleged l

•that she caused the aforesaid sum of $700 to be taken from her husband * s funds and paid over to B* Ho Williams, agent,without authority to do so, but thinking her action would meet with her husband*e approval; that she subsequently found her action did not net with her husband’s approval; and she prayed that plaintiff's suit be dismissed and that she have judgment ordering the return of the $700 to her*»

fhe defendant, Eoxell Ho Williams, admitted all the allegations of the petition; furtiro answering ha alleged that he had complied with all his obligations as a broker in the transaction and that ha was entitled to a commission of three per sent on the price of sale, say $210, and to $50 attorney’s fees, in accordanoe with the oontraot; and he prayed

•that the demand of plaintiff be rejected, but in oase of recovery by her, then, in that event, that his rights against her, under said agrae-Mnt of «le, be recognized, and that he be permitted to retain in his hands out of said fund the amount of damages due him by her, to-wit, the sus of $210 and $50 additional aa attorney’s fees, and that his reoon-ventlonal demand be rooognizat against her In said amount»*

Frederick A* Lemieux intervened, alleging that the $700 deposited by his wife ware his property had bean paid over to Ho Williams "without any authority, and he prayed for judgment for $700 against plaintiff and Ho Williams#

Lemieux Brother» & Co* alao intervened alleging that they had paid the $700 to Mo Williams without the authority of Lemieux and prayed for judgment in their favor#

On February 7th, 1919, the defendant, Mrs# lemieux,filed a supplemental answer In which she alleged that she had now learned that on October 6th, 1917 the plaintiff was not the sole owner of the property she offered to sell but that she owned only one half of it, and that the other half was owned by four other parties, who sold it on December 3rd, 1917*

On the ferial of the oase, the plaintiff moved to stride out the supplemental answer on the ground that it changed the issue and oontradicted the admission contained in Mrs# lemieux answer# inasmuch as the allegations of the supplemental answer, will have no influence on our judgment, we shall not consider th# motion#

In the further progress of the trial the following admission was made:

«It is admitted that if Mrs# Hook, the plaintiff, were present and plaoed on the stand as a witness, she would testify that on October 26th, 1917, when Mrs# lemieux, the defendant, waived formal tender of title, she was ready to tender title of the property covered by the agreement, and that the tender would have been of property owned in indivisión by herself and her children, all of whom are majors, in which tender of title her said children would have joined; it being understood that Mrs# Huok was representing herself and her children in the sale of the property and had acted for herself and her children in the sale of the property# And it is also agreed that Mrs# Huok did not hold any written power of attorney from her ohildren. This admission is made subject to the objection of counsel for defendant, Mrs# lemieux, that such, transaction concerned conveyance of real estate, and, being purely by parol, is inadmissible# (Ehe Court# Which objection is maintained by the Court# Counsel for defendant and for the intervenors states that all the defensas prai-sented in this suit are waived, except that presented by the supplemental answer. On behalf of R. Mo Williams, It is admitted that there was an understanding had between Mrs# Lemieux and Me Williams that his commission in the sale should be One Hundred Dollars ($100o00); and the qwstion of the attorney’s feei in oonneotice. with Mr* mo williams’ claim is referred to the Court»*

There was judgment rejecting plaintiff’s demand» and judgment in favor of defendant» Mrs. Lemieux, against Mo Williams for $600, costs of suit against plAintiff and Mo Williams, in solido, and rejeoting the interventions of F* A. lemieux and Lemieux Bros*

From this judgment the plaintiff and Mo Williams alone have appealed*

The fundamental error of the defendant, Mrs* lemieux, ie In assuming that because the plaintiff was not the exclusive owner of the property she oould not bind harialf to sell it, and therefore the defendant was released of her obligation* In support of her position she quotes Artiole civil code 2462 (2427) whioh reads as follows t

"The sale of a thing belonging to another person is null; it may give rise to damages, whan the buyer Knew not that the thing belonged to another person»* A literal translation of C. IT., 1699*

But this nullity is only relative and in the Interest only of the purchased and of/the real owner or his creditor* 12 M. 653; 7 N. S., 96; 12 R., 625; 31 A., 415; 122 La., 983 )990); 123 La., 465; 117 La., 794, 807.

In Jefferson Saw-Mill, 122 La., 991 the Court quoted from 24the Laurent Mo* 116 who said:

»In our opinion the nullity is relative* It is established in the interest of the puichase/and against the vendor who sells a thing, the ownership of whioh it is inpossible for him to transfer to the purchaser»* Also 111, 118, See Also 15 Baudry-Lac Vc. Vente 94.

It follows that the nullity ^cf the sale cease a the moment the vendor comes into a position to transfer the title and the possession to the purchaser*

The same Laurent 120 says that it is the almost unanimous opinion of commentators tfca^the nullity of the sale is overcome by the confirmation of the owners, and that^jurlsprudence is in the same seaaeo 4 Dallos Codes Ann* on Art* 1599 p* 89 No. 109 and authors and decisions there quoted* See besides, 43 Dalloz Rap Gen. 520, 525 p 158 ; 1 Tro long 237 ; 8 Merlin Questions Vo. Hyp. XV Bis Ho* 6 p 141; 5 Boileux 632; 16 Duranton 179: 24 Laurent 118, 120; 18 A., 231.

We have already seen the admission made that the ooproprietors of the plaintiff would have joined in the tender of title to defendant had she not waived it*

In the oase of Bonura Mo* 7530 of this Court, we decided that a party who agrees to purchase property cannot refuse to comply beomuse there are mortgages reoorded against it, whan tba vandor daolarta bit ability and williuguaaa t* oanoal them at tba momant of passing tba aot of sala»

Iba laarnad Juiga of tba Dlstriot Conrt was in arror in refusing to raoaiTa in avldanoa the admission of tba partías that plaintiff's ooproprlators would join lnttba tendar of titla to tba defendant. It must ba notioad that tbs plaintiff aoosptad tba offer to purchase individually and not as agent of bar oojnropriatorso She bound herself personally and not as agentm of bar ooproprlators. In the oaaa of Haveny vs Hoyle, 14 Ct. App. 152 wa daoided that a party who maloas a oontraot go with another is bound personally*^, fhe admission was not intended therefore to prove plaintiff* s authority to sell in the name of and as the agent of tbs otter owners, which, of oourse, oould have been dpnt only Iq. writing. But it was to prove theAt, willingness and readiness .to 'sign the aatkof sale to the defendant and /stheir consent to oarry out their mother's oontraot* gwéa think oould have been \* done by parol, just as it would have been admissible to show by parol that plaintiff herself was present and ready to sign an aot of sale,* 13 A., 217.

We do not thinkrathatf Mo Williams is entitled to any oownisslon from ths plaintiff* The insertion in the oontraot of the obligation of Mrs* Lemieux to "pay agent’s ooraolssion", and the erasure of the words "and will pay RL Mo Williams a ooimaisslon of ___ per cent for making sale" above the signature of Mrs* Book indicate very clearly that ths oommission, if any, was to be paid by Mrs* Lemieux A?e<L and not by Mrs* Book*^Uo Williams has asked for no jad grant against Mrs* Lemiesxf on the contrary he has argos d that one defendant oaxmot recover a Judgment against a oo-defendant*

It is therefore ordered that the Judgment herein be reversed and set aside; and it is now ordered that there be Judgment in favor of plaintiff Mrs* Georgiana Krail Book and against the defendants, Mrs* Rosalie V. Lemieux wife of F« A* Lemieux and Rom 11 mo Williams, in solido, reoofcgixlng said plaintiff to be the owner of, and as such entitled to, the son of Seven H — sssi Hundred {$700*00) Dollars held én deposit by said Rom 11 Mi williams, and that he be prdered to pay over said son to the plaintiff herein*

It is further ordered that Mrs* Rosalie T* Lemieux and Rosell MO Williams be condemned in solido to pay all the costs herein*

judgment reversed

Maroh 8th, 1980*

OH APP1I0ATI0Í POR RBHBARIHC.

P2R OURIAIl:

In our original opinion and decree we did not oonaldor the possible oiaims oí tho defendant, ilo Williams, againet hla co-defendant , Mrs. Lomioux, as none were set up, and wa did not pass upon them; therefor* we saw no neoesnlty of reserving his rights, if any, against her; but at the request of Kt Williams we do nov specially reserva to hip any rights he may have against Mrs. Lemleux under the otntraat of sale mentioned In our opinion.

Me Williams I3 not entitled to he considered as a stakeholder and as suoh relieved of the payment of oosts, 50 A 1027. He did not admit owing the amount eltherto the plaintiff, Mrs. Huok, or to the defendant lire lemleux, neither did he deposit the amount in court to await the judgment of the court as to the rightful claimant.But on the contrary in his answer, he specially prayed that plaintiff's demand he rejected and"that he he permitted to retain in his hands out of said fund the amount of damages due to him hy her (plaintiff) to witt; the sum of >210 and $60 additional as attorney's fees, and that his reoonvsntlonal demand be ' reoognized against her in said amount."

We see no reason to change our opinion as far aB Mrs. lemleux is concerned.

Both applications for rehearing refused.

Hev; Orleans la, April 5th, 1920

A true oopy.

By Olerk

^pril 21st 1920  