
    No. 7777
    Mr. & Mrs. Ernest Ruffo -vs- H. G. Marcotte.
    Court of Appeal- Parish of Orleans.
    By Dinkelspiel- J.
   The plaintiffs in this case were the purchasers of a pieoe of property formerly belonging to Mrs. George H. iougall. These then lessors rented to defendant the premises No. 1838 Fern Street for a period of one year commencing on the 1st of'July, 1918, and ending on the 30th of June, 1919. Among other clauses in the lease, there is to he found this clause: "It is understood and agreed that failure of lessee to notify lessor or his agents in writing within thirty days of expiration of this lease shall he construed as a renewal of same, under such terms and conditions as is now enjoyed." This lease was duly recorded and transferred to plaintiffs in this suit in due course.-

It transpires from reading the testimony and the various letters between counsel in this case that shortly after the expiration of the lease in cuestión the plaintiff and defendant met on the streets in this City and defendant offered his check in payment of the rent due for the following month,?35.00. Nher. the offer of the check was made, plaintiff produced an ordinary receipt which defendant refused to accept, buty^tefldered a receipt mnd-i fy-Wic^t?fa terms of the renewal of.the lease heretofore quoted. The plaintiff said that he must see his lawyer about this and asked that the parties meet the following day so that matters could be adjusted and payment made. Defendant did not appear the following day, but a notification or letter was written by his attorney stating his willingness to pay the rent for that month upon a receipt to be signed as dictated in accordance with the renewal obligation of the lease.

Several letters of the same character passv.ú between the attorneys of the'parties without coming to any definite conclusion, and eventually a perraptory notice was sent by plaintiff's attorney that if within twenty-four hojSs after the receipt of the letter fixing the time for payment wa3 not made, an ejectment proceeding or suit for possession would be brought,and no payment having been made on other letters of the same character intervening but without producing money results, the money being in the hand3 of the attorney of defendant ready.and willing to pay as frequently asserted, which offers were declined, and this suit instituted.

There is little or no dispute about the facts as thus stated, and the only question is, can defendant avail himself of the obligation that the lease devol ves upon him by placing the money, as he said he did, and as the attorney states in the hands of his counsel? Tie think not. Tie think the law is absolutely the other way, and in order to avail himself of the obligation and the enjoyment of the lease, it was compulsory for him to make payment in money and nothing else would answer. In this connection, we refer to the case of Mudd vs. Skille's Heirs, 6 La. p. 19. "A real tender can not be made so ac to 3top interest, unless the legal formalities are pursued, thus, a tender to the plaintiff's attorney at law is insufficient."

In the 2nd Annual, Bacon, et als vs. Smith, et als, p. 441, the syllabus reads: "The mere announcement by the maker of a note of his readiness to pay, made to the holder, and the refusal of the latter to receive the amount or. the ground that it had been attached at the suit of a third person, is r.ot a legal tender and cannot stop: intere3tv-S, Quoting ;jj g' Code of Practice, 407-415. '<& l, ft. *'}

.Garland'3 Revised Code of Practice of touíísjjJúi&í fteo. 1, Art. 404. "Heal Tender,’1 n’rhen a defendant confesses that he owns the -/.-hole ox a part either of the debt or of the property demanded of him, and the plaintiff refuoes to receive v/hat sveh defendant aehnoNle djes that he owec him, such defendant may aubs a real tendon of .same to such plaintiff either after the issue hd3 bsoh joined or oven previous to any judicial ¿rccerdinjs having been instituted against him.” C. P. 417. C.C. 2167.

"That the tender be made in tiie place agreed u.-on Por the payment, or that, if there be no" special agreement as to the place of payment, it be made either to the creditor himself or at his dwelling, or at the house ohosen for the execution of the agreement."

Art. 407 of the Code of Practice reads: "Tender of Money." "Rher, the tender is for money due, it must be made to the creditor himself or at his actual or chosen domicile, by the debtor or his agent, in the presence of two witnesses, residing in the place, by tendering to such creditor the sum which is due to him, with interest and such costs as he may have incurred, and exhibiting ouch sum to him in the presence of such witnesses in current money of the United States." Also see Arts. 409 and 411, C. P., also see 46 Ann. Simonds vs. Sheriff, et als, p. 472-473, and under the head of "Tender" Cyc, Vol. 38, p. 143, Sec. 3. "Tdien making a tender there must be an actual offer by the tenderer to pay. An announcement -without more oí an intention of making a payment is not sufficient, r.or is an assertion of readiness or willingness to pay sufficient,"

Ke have thus gone into the-facta and the law of this case and have cone to the decided opinion that the plaintiff has fully made out his case --nd the defendant has f.died under the law to give the satisfaction that the law requires in similar cases. There could be no other payment and no other tender except such as the law provides for; that the mere fact that from month to month defendant has handed his attorneys the amount of rent due to plaintiff is not a legal tender and cannot so bs construed under any circuí:.stances.

For she reasons assigned in this opinion, the judgment of the court a quo is affirmed.

Judgment affirmed.

DISSBBtlBO CPIIIO*.

St. Paul, J.

I am unahle to agree with ay Colleggnea and with tha hlatrlot Juago.

They may ha right; hut I think that defendant was lag hy oaonotl’a lottar of August 1st (mot Intentionally, of oouroa, hut mamo tha laaa ariaoutly) Into tha hallof that a now laaaa would ho algned at tha s«M tima that ha paid, tha rant, that la, within tha £4 hours. Amt however may have haan tha taehnieal aarits of dafaadant'a original position. It waa at laaat not an mu. tmdaad, «hat appeared ta have haan eonoadod, waa aran mora than ha had aakod; ao that to him tha oontroTarsy aaaaad olosod.

XI.

Again, I think that no tandar hy dafamdant waa required. A tenter is naoasoary and useful only to atop lataroot and oeata, or ta antleleat< and prevent a auhaequent putting in tofanlt jjt aona iaaonvoniont But In order to dlaaolTa a laaaa or other oontraot far a paaalwe h«wh thereof, thara must ho an actual putting in daafult, mat a nara want af tandar or eran a long oomtlnued and deliberate fallara af perfumamos: unloaa a putting in default has haan waived, or would ha aaolaaa awtag to a paranptory rafuaal, or manifeat Inability to parfoxn.

She only putting In dofault in this oasa (almas thara waa ns peremptory rafuaal to pay^or rafuaal at all after tha latter af August lat)oould and should hare haan a demand made at tha dentella of thm defendant (the debtor) hy a parson than and there ready ta resolve tha payment. A demand h£ post was no demand at all. Lafayette Realty Vs. Puglia, 10 Orleans App. Rep. 105; Bennabel va Metairie Cypress Co., 120 La. 928.

Briede Babat, 181 La 181, has no spplloatlon hero. There tha plaintiff sat only «llagad ««loable demand without «wall, hut proved rapaatad and praaaing personal demands, rla, "oanataut dunning,” without resulta. And, aa aforaaald, no tandar of aay kind waa required of tha dafandant in thla oaaa; ao that whan er whara or how tha nonay for tha rant waa "oonalanad^la ef no oonaaquanoa whatarar.

III.

Moreover X an hy no naana aura that dafandant'a original position waa only ngi unxaaaonahla: It nay aran have haan atrlotlt oorraot In law,

Bor besides the provisions of tha old laaaa for a taolt renewal, that oontraet gave defendant an express "right to rasaw;" by which, of oouree, the partlea oontanplated althar tha waking of a new written lease, or at least a written extension of tha old one.

low It nay ha truo that defendant did not need any foxaal instrument, or written inatruaent at all, in order to retain possession of the premises; slnoe the law (sometíaos) oonalders that done which should hare teen done. Tet, none the less, defendant was entitled to just auoh an\ instrument, einoa tha old lease gave him a legal right to it; for a oontraet to axaoute ¿ oontraoti the terms of whioh are fixed, Is a ralld and binding agreement In this state, as elswhere. Kaplan vs Whitworth, 116 La 337.

And therefore when plaintiffs "failed, refused or neglected" to execute a written renewal of tha lease (whioh In the Tory nature of things should hare oreoeded the time fixed for payment of tha rent thereunder) they were themselves in no position, without a change of mind on their part, to demand iifMWittiitt'HtíHUÍt tHtftUU performance on the part of defendant, 1. e. to demand payment of the rent under that lease.

Tor a party to a contract who fails to perform (and is not xeady^even willing to perform) his ##### share of the agreement, is as yet in no position to damend perfromanoe by the other party. Ihls ia the general law; in thia State it ia even statutory. 9 Cyc 721 Verbo; Oontraota, viz, "When first act ia to Re ¿one by-plaintiff, " Rotea SI to 55; Golding vs Petit, 20 An 505; Brown vs Stubbs, 47 An 1480; C. C. 1913, 1914.

IV.

For my part I have not the 8hadow of a doubt that plaintiffs would have received their rent promptly and fully, had they but shown the least inclination to do that whioh reason and equity (to say nothing of atrtet law) pointed out to them aa the one proper thing to do; and the same letter of August 1st shows, to my mind, that they had been very plainly told ts=de'.

I therefore respectfully dissent.

New Orleans December 9th, 1919.

January 12th, 1920.

0 Since tho filing of tho transcript of appeal in this case, tho plaintiff haa instituted an notion in the Diatriot Court against tho defendant In which ho claim* Judgment for One Hundred Dollar* for rent for the months of August, sept* ember, October and Hovomber last and for all such additional rente as may fall due from month to month pending theyjf pro* oeedings and that the lease far the remainder of the term be cancelled and annulled and that he be put in possession of the leased premises.

The defendant and appellant thereupon brought this-pe tit ion to the attention of this court, and, construing said petition as an abandonment of the original suit for possession and incompatible therewith, moved this oourt to remand this oase to the Dletrlot Court for the purpose of inquiring into the effect tdf that suit for rent upen this suit for possession.

He think It unnecessary to take euoh action, as the Supreme Court has already settled the question. In the oases of Dubois vs. Xiques 14 A. 427, Fox vs. Mc Kee 31 A. 6; and Doullut vs. Rush 142 La. 443 (451) tits Supreme Court said that there was no inconsistency in the demand for the dissolution of a lease and for rant during the oeoupanoy of the lessee up to the time he surrenders possession of the leased premises. In the case of Delmar vs. Alberstadt 10 Ct. App. 148 this court decided that a notice to vacate and a suit for poeeassion are not -waived by reeeipt, during the pendenoy of the suit, of rent past due.

The oase of Deslonde vs. O'Hern 39 A. 14 relied upon by appellant is not in oonfllot with these opinions. In that case t$a Court maintained an injunction against the execution of a writ of eviotlon for the reaeon that, after the judgment of aviation, the lessor as a compromise, had 'agreed not to exeoute this Judgment and to permit the lessee to remain on the premise? if he (the leasee) would pay ooste and the entire rent". The faots in this case are different. The lessor has has only sued for the rent aocrued and to aoorue during the actual occupancy of the premises by the lessee. Surely the leasee oannot occupy the premises free of rent, nor does the lai? make the lessor forfeit his right to the rent as a penalty for suing for eviction for non-payment of rent, nor lose his right under a suit for eviction as a penalty for suing for rent due for occupancy.

The motion to remand is therefore denied, and as the petition for a reheating has not convinced ue of an error in our original opinion, the rehearing also is denied.

January 12th. 1920  