
    F. J. DeMARY, Plaintiff-Appellant, v. Louis A. FONTENOT, Defendant-Appellee.
    No. 1068.
    Court of Appeal of Louisiana. Third Circuit.
    Feb. 18, 1964.
    Rehearing Denied March 11, 1964.
    Writ Refused May 4, 1964.
    Joseph E. Coreil, Ville Platte, Daniel J. McGee, Mamou, for plaintiff-appellant.
    Pavy & Boudreaux, by Albert Boudreaux, Opelousas, for defendant-appellee.
    Before FRUGE, HOOD and CULPEPPER, JJ.
   FRUGÉ, Judge.

This suit was brought to enforce an agreement made between plaintiff and the defendant for the sale of certain race horses.

On August 21, 1959, at Orange, Texas, plaintiff and defendant entered into an agreement whereby plaintiff did "sell, transfer, assign and deliver” to the defendant six particular horses. The total consideration was stated as $9,200 which, according to the agreement, was to be paid in the following manner:

“THE TOTAL CONSIDERATION for all of the above named Race Horses is NINE THOUSAND TWO HUNDRED ($9,200.00) DOLLARS which is payable in the manner as set out, expressly stipulated and fully agreed on as follows:
"IN THE EVENT either of the above named Race Horses is Sold outright or is Claimed in a Race known and termed as a Claiming Race, the entire Sale Price or the Claiming Price, whichever applies, is to be surrendered to and delivered to the Seller, F. J. DeMary, at his office in the City of Orange, Orange County, Texas, and the amount so paid or surrendered to F. J. DeMary shall be applied by him on the full Purchase Price of NINE THOUSAND TWO HUNDRED ($9,200.00) DOLLARS. ON ALL EARNINGS at various Race Tracks where these Race Horses might be raced, the Seller, F. J. DeMary, is to receive and is to be paid an amount equivalent to Forty (40%) Per Cent of the Net Purse, meaning the Track Winning Purse, whether the Purse be for Winning, Placing, Showing or Placing Fourth, or such percentage fully applies to the winnings as commonly termed ‘Across the Board’ and it is understood that such payments are to be continued until the Seller, F. J. DeMary, has been paid the full Selling Price of NINE THOUSAND TWO HUNDRED ($9,200.00) DOLLARS.”

Plaintiff brought suit in St. Landry Parish praying for a judgment for the amount of the purchase price and that his vendor’s privilege be recognized and maintained against the property. The defendant filed an untitled exception which was maintained by the district judge. From this ruling plaintiff appeals.

Defendant’s exception was based on three grounds — suspensive condition, public policy, and potestative condition.

Defendant contends that since the total consideration is not to be paid until the horses are either “claimed” or have won a race or races, such operates as a suspen-sive condition to the completion of the contract until the horses are raced. Plaintiff argues that this is merely a method of paying the purchase price.

In considering the exception we must accept the pleaded facts of the plaintiff. In his pleading plaintiff alleges that defendant is indebted to the plaintiff, that the plaintiff received no payment whatsoever despite amicable demand for payment, and that defendant has actively breached the contract. Whether these alleged facts are true or not is a matter for the trial court to decide when trying the case on the merits. Regardless of whether the agreement contains a suspensive condition or is merely a method of payment, the facts pleaded by plaintiff show that there was an agreement and are sufficiently set forth to entitle plaintiff to a trial on the merits.

Plaintiff contends that the agreement is contrary to public policy because the contract was entered into in the State of Texas where horse racing is unlawful. “ ‘In Louisiana, the rule has been generally state to be that the law of the place where the contract is to have effect determines the rights and obligations of the parties.’ ” Universal C. I. T. Credit Corp. v. Hulett, La. App., 151 So.2d 705, and cases cited therein; LSA-Civil Code art. 10. In the present case there was a clear intention that the agreement was to have effect in the State of Louisiana where horse racing is legal. Therefore, a Louisiana court cannot refuse to enforce the agreement on the grounds that the law of Texas forbids horse racing.

Defendant also contends that the agreement contains a potestative condition because the performance of the agreement is conditioned solely upon the horses being raced.

“Every obligation is null, that has been contracted, on a potestative condition, on the part of him who binds himself.” LSA-Civil Code art. 2034. “The last preceding article is limited to potestative conditions, which make the obligation depend solely on the exercise of the obligor’s will; but if the condition be, that the obligor shall do or not do a certain act, although the doing •or not doing of the act depends on the will of the obligor, yet the obligation depending on such condition, is not void.” LSA-Civil Code art. 2035. In Long v. Foster & Associates, Inc., 242 La. 295, 136 So.2d 48, 53, the Supreme Court stated that “Article 2034, because of the limitations placed on it by Article 2035, is applicable only to the purely potestative condition, that is, one which is subject only to the whim or pleasure of the promisor and would involve no detriment, disadvantage or inconvenience to him if he brings about or hinders the happening of the event on which the obligation depends.” (Emphasis added.) Thus, we must determine in the present case whether the condition imposed for the payment of the price was purely potestative, depending merely on the whim or pleasure of the promisor. Actually, the issue is whether or not the legal freedom of the plaintiff was limited in any way. Here, if defendant sold the horses or if they were claimed, he had to pay the plaintiff. If defendant raced the horses a portion of the earnings would have to be paid to the plaintiff. Certainly this was a limit on defendant’s legal freedom to use the property. There was therefore no purely potestative condition involved in the agreement.

For the foregoing reasons the maintaining of the exception by the district court is reversed and the case is remanded for proceedings not inconsistent with this opinion.

Reversed and remanded.

CULPEPPER, Judge

(dissenting).

I respectfully dissent from the majority ■decision that the exception of no cause of action must be overruled. It is my opinion that the exception of no cause of action should be sustained, because the contract contained a suspensive condition, as to a future and uncertain event, which is not alleged to have taken place. However, I think this case should be remanded to the district court, for the purpose of allowing plaintiff to amend his petition, so as to allege that the suspensive condition has been fulfilled.

LSA-C.C. Art. 2043 provides that if an obligation is contracted on a suspensive condition, as to a future and uncertain event, the obligation is not due until after the event has taken place. Under the contract in question, plaintiff sold the defendant six race horses for the price of $9,200. The contract expressly states that this purchase price is not to be paid unless or until the horses either: (1) are sold outright by the defendant or (2) are claimed in a “claiming race” or (3) win money in a race. It seems clear to me that these are suspensive conditions, the effect of which is that the purchase price does not become due unless or until one of these events takes place.

Plaintiff’s petition alleges only the contract and that plaintiff has not been paid the purchase price for the horses. The petition does not allege that the horses have ever won any money in a race or that they have ever been claimed in a “claiming race” or that they have been sold outright by the defendant. Thus, under the contract, which is the law between the parties, the plaintiff has failed to state a cause of action in that he has failed to allege that any of these sus-pensive conditions, on which the obligation to pay the purchase price depends, have taken place.

These suspensive conditions cannot be lightly brushed aside, as the majority has done, by simply stating that, regardless of whether the agreement contains a suspen-sive condition, the facts pleaded show that there was an agreement by the defendant to pay the purchase price. In my view, the express stipulation for payment, only in the event of certain events taking place, was of the very essence of the agreement. Horse racing is a most precarious business. The parties to this contract didn’t know whether these horses would ever win money or be claimed in a claiming race. It appears to me they clearly intended that unless and until one of these events occurred, defendant would not have to pay anything on the purchase price. (It is not disputed that a contract can provide for payment only from certain specified sources. Williams v. Ligon, La.App., 144 So.2d 131 and the cases cited therein; 40 Am.Jur. 734, Verbo Payment, Section 33.)

I agree with the majority that there was no purely potestative condition in this contract. I do not think it was left entirely within the power of the defendant to determine whether or not he ever paid the purchase price. LSA-C.C. Art. 2024. I think there was an implied condition that the horses would be raced in an effort to win money or have the horses claimed. LSA-C.C. Art. 2026. However, if it is the contention of the plaintiff that there was an implied obligation on the part of the defendant to race the horses, and that defendant has prevented the fulfillment of the suspen-sive conditions by failing to enter the horses in a race, then in order to state a cause of action under the contract he must certainly allege such facts. (Plaintiff’s counsel stated to us in oral argument that the horses actually have been raced but counsel did not state whether the horses have won any money or been claimed in a claiming race.)

In his brief filed in this court, counsel for the plaintiff has, in the alternative, asked that in the event we conclude the exception of no cause of action must be sustained, we remand this case to the district court for the purpose of allowing him to amend his petition so as to allege that the suspensive conditions have taken place. I think the case should be remanded to the lower court for this purpose, in accordance with the provisions of LSA-C.C.P. Art. 934 which provides for amendment within a delay allowed by the court.

On Application for Rehearing.

En Banc. Rehearing denied.

CULPEPPER, J., is of the opinion that a rehearing should be granted.  