
    STATE OF LOUISIANA PARISH OF ORLEANS COURT OF APPEAL
    S. F. BOWSER COMPANY, INC. versus GEORGE WAMBSGANS
    No. 7552.
   £11110|

Max Pinkelsplel. Judge.

Plaintiff sues defendant under a contract of sale of a gasoLene tank and equipment, the agreed price being $394.50, of which the defendant paid the sum of $39.45. Plaintiff alleges that it 1188 fulfilled all the obligations imposed by law upon it under said contract, and shipped and delivered to the defendant the said tank and equipment, and stood ready and still stands ready and willing to install same, as agreed, and has tendered and herewith tenders the installation thereof; that notwithstanding this, defendant has declined to accept said tank and equipment, or to receive the installation thereof, or to pay for same, in accordance with the terms of said oontraet and said notes; that defendant failed to pay the installment which became due on February 3, 1918, and has paid no other installments than the $39.45 credited to him. • Plaintiff also claims interest at per annum, and 10JÓ attorneys' fees on the amount of the balance and interest thereon, and prays for Judgment in accordance therewith.

The defendant first sat up no legal right or cause of action; that the document sued on does not serve for the basis of a Judgment against him; and, answering subsequently, he denied the legal construction placed upon the contract. He admits paying to plaintiff $39.45, but avers that said payment is to be governed by the express terms and conditions of the contract; avers that the contract forming the basis of the suit does not evidence a sale between the parties; that under its express provisions no title was to pass; no delivery was ever made or contemplated, except under certain conditions contained in said contract, and the said contract contemplated an installation of a certain gasolene machine or pump by the plaintiff, and evidences an obligation to do or not to do, and for the violation of which either party would he entitled to such damages only as were fixed hy the written contract; that there was a certain clause inserted in said contract which reserved the right of ownership in plaintiff to reclaim.the gasolene machine without due process of law, and to forfeit as liquidated damages such payments as may have been made. He denies that any delivery, real or contemplated, was ever made; denies that plaintiff is entitled to the remedy of specific performance under the contract,- or under the subsequent transaction and convention.

Defendant, further answering, says that he sold out his place of business, which fact was well known to the agent of plaintiff, and it was agreed that -the gasolene machine would not be installed but that the agent would do his utmost to dispose of said machine, and denies that any effort was ever made by plaintiff or his agent to install said outfit at any time after its arrival. Therefore he prays for Judgment.

The contract in question is in writing and, amongst other •clauses, we find this;

"Terms: In consideration of the shipment of the above listed goods, the undersigned agrees to pay S. F. Bowser Company,'Inc. the above named amount, $394.50, same being price of said goods,as follows: Cash.with order $39.45, and the balance of $355.05 payable as evidenoed by promissory notes with interest attached thereto, which said note is given as evidence of said indebtedness and not in payment thereof."

This agreement was signed by plaintiff's agent and the defendant, and notes given in accordance with the terms of said contract.

From the evidence filed in this case we find that plaintiff's agent, Edward F. Dolan, testified as follows:

You took this particular order?
. Yes, sir.
Do you know whether or not the goods called for in this order were shipped and delivered to the defendant?
Yes. They were at his place. , That is the place he had on St. Claude Avenue.
Are they in his possession at the presentidme?
Yes, they are. When the goods arrived there was son* question about Hr. Wambsgans selling oat and he asked me to hold off the installation, and he asked 6e' to make' a request of the City Council for the right to Install it on the sidewalk, and the oounoll granted a special permit to Ur. Vamhsgans to install*
ft: I .understand that this is one of those -gasolene filling stations that sets on'the sidewalk; is that oorreot?
A: Tes; and they had a permit passed through the council to allow him to do that.
ft And you say that the installation was withheld at his request?
A Tes. He said that he was hanking., on selling out to a number of parties, and he asked me to hold off. I said 'All right; we aré ready, as soon as you are/
ft; Were you ready to install the apparatus, at any time?
A; Tes, sirw
ft; And the machine is in his possession?
A: Tes, sir.
ft; The agreement or oontraot has not been cancelled, in any way?
A: Ho, sir.

By the Court:

ft; Has he ever called upon you to Install that apparatus according to the contract?
A: Ho, sir. He sold the business out.
ft; Have any further payments been made beyond the §39.46 which was paid cash?
A: Ho, sir.w

The defendant, Wambsgans, and his wife both testified in this case, and, in accordance with their testimony, we are satisfied that the facts sworn to by Ur. Dolan are absolutely true and without contradiction, and, without going into the details of the testimony - for which there is no necessity - we consider that the plaintiff has fully made out its case.

The law ou this subject is to be found in our Civil Code. Article 2466 provides:

"Sale Complete when Agreement to Buy and Sell Perfect. The sale is considered to be perfect between the parties, and the property is of right acquired to the purchaser with regard to the seller, as soonf as there exists an agreement for the object and for the price thereof, although the object has not yet been delivered, nor the prioe paid." (Quoting numerous authorities).

Again, we find in Article 2467 of the Civil Code, in speaking of sales:

"The sale may be made purely and simply, or under a condition either Suspensive or restlutive. The object of the sale may also be two or more alternative things." (Authorities).

1919.

Article 2464 C.C. provides:

"The price of the sale must he certain, that is to say, fixed and determined hy the parties." (Authorities).

The leatned counsel for the defendant in this case refers to the case of Hypolite Larousini v. Philip Werlein. 48 An., 13. Quoting from the syllabus:

"Ho cause of action - If there was a contract as alleged, plaintiff had no cause of action to compel the defendant to sign a deed of lease and accompanying notes."

This cause does not in any manner come under the facts and obligations in this case, and therefore, does not apply.

The other case cited by counsel is in the 49th Annual, at page 666, “ Mirandona v. Nicholas Burg. The syllabus in that case reads:

"The specific performance of a contract will not be ordered, when compensation can be made in damages. Hor will it' be decreed when the contract requires the doing of an act solely within the volition of the obligor, such as the signing of. a lease or the appointing of an arbitrator or the exercise of an option to purchase property."

We consider that there is no applicability between the case at bar and the cases cited. The law is unambiguous and plain. The consideration in this case, acknowledged both by the act of Sale .and the notes in question, is the voluntary act of the defendant, for which he is bound in morals and in law.

Judgment affirmed.

Hew Orleans,  