
    Leo Fellman. -vs- Mrs. Isabel Smith.
    No. 8068.
    Court of Appeal. Parish of Orleans.
    Binkelsplel. J.
   Dlnkels-plel. J.

Plaintiff claims that defendant is indebted to him for commissions earned under a contract made with her for the sale 04 property belonging to a Mrs. A. Baldwin in the sum of §570.00, together with legal interset from judicial demand, ten peroent Attorneys fees and all costs of Court.

That on June, 11th, and for sometime prior thereto, plaintiffs real estate agency had listed with it for sale the residence No, 3634 Prytania Street, the prpperty of Mrs. A. Baldwin.

That on June 11th. 1930 a representative of plaintiff's office visited defendant and procured from her a signed offer to buy the said property at a price of |19.000. which offer was written and signed on one of the blanks usually used by plaintiff, and whioh said offer stipulated that it should remain good and irrevocable until 15th. June 1930.

Plaintiff alleges further, that immediately upon the submission of said offer to Mrs. Baldwin, the owner of the property in question who accepted same on June 14th. 1930, prior to the experiatio» of said offer, and prior to any off orts on the part of said defendant to revoke same, said acceptance being endorsed upon said offer in writing, sig ned by Mrs. Baldwin, containing an agreement signed by her to pay plaintiffs commission of three per cent on the purchase price..

Plaintiff notified defendant of the acceptance of said offer by Mrs. Baldwin and called upon her to deposit the sum of §1.900. being ten peroent of the purchase price, in accrodance with the terms of said offer. That defendant expressed thereupon her^jííílingnass to comply with the terms of said agreement which had rippened into a oontraot through it's aforesaid ax acceptance by Mrs. Balwin, and requested Mrs. Baldwin to release her thereunder, and Mrs. Baldwin although entitled under the law to enforce her oontraot with defendant elected not to do so releasing defendant from her obligation under nai& said oontraot to purchase the residence aforesaid.

That the offer signed by defendant and accepted, upon the usual form used by plaintiff in connection with his real estate offioe, oontains the following stipulation; " Should X fail to comply with the terms of this offer if accepted, I obligate myself to pay the commission and damages". That by virtue of the terms of said stipulation, the defendant on aooount of her failure to comply with the terms of her accepted offer, became obligated to pay palin-tiff his commission and damages, this commission being three per cent upon the purchase price $19.000,, or $570. according to the termd of Mrs. Baldwins acceptance of the said offer, and according to the custom and practice prevailing among real estate agents and brokers in the City of New Orleans.

That demand was made upon defendant for the payment of this commission to plaintiff, and that as a result of said demand, the defendant shortly thereafter called at plaintiff's -office for the ostensible purpose of discussing with one Charles Rosenberg, a member of plaintiff's offioe force, the claim made against her for this commission. That whilst defendant was discussing thiB matter with said Rosenberg, she suddenly, violently and unexpectedly, seized the written and signed offer and acceptance, described in the petition, which had been handed to her for inspection, and which was then lying upon the said Rosenberg's desk, tore same into pieces, before she could be inteffred with or in any way restrained, xnnsd rushed out of the office before she could be stopped, carrying away the written and signed offer and acceptance with her torn into pieces.

That on account of the fact that defendant , ±hax has abstr -acted the aforsaid signed written offer and acceptance from the office of plaintiff, without the consent of plaintiff, and had torn same into pieces, and carried same away with her, torn into pieces, plaintiff is not able to annex the original to this petition, hut in lieu thereof annexes a copy.

And finally claims th^t he had made amicable demand for the payment of the commission due him by the defendant in vain; that being obliged to sue and employ attorneys to recover his commission is entitled to recover a reasonable amount qt attorneys fees, ten per cent, upon the amount sued for,under the stipulation in the said offer signed by defendant, obligating herselfl. to pay the commission and damages if she failed to comply with her offer of its acceptance.

Plaintiff prays for ¡Judgment in the full amount of the claim, as stated, together with Interest, attorneys fees at ten per cent and all costs.

To this petition defendant filed exceptions; first, that the petition is too vague, general and indefinate to enable defendant to safely answer; and, second, that the petition discloses no cause of action. Hence she prays that the suit be dismissed, and for Judgment in her favor.

The contract in question is annexed to and made a part of the petition, and reads as follows " Leo Pellman.

Hew Orleans, La.

Hew Orleans, June 11th, 1930.

Dear Sir:-

X offer to buy the residence 3634 Prytania St. on ground measuring about 135 by 136, more or less, subject to Homestead loan $15,000. or as per title, for the sum of Nineteen Thousand oo/l00 Collars-, on terms of all cash, balance subject to terms above....years credit as per Vendors lien notes.f> interest per annum, payable. secured by all usual and customary clauses. Mantles aiid chandeliers downstairs not inoluded in sale, but present owner will furnish mantels and chandliers and install in place of those removed. Taxes 1930 to be prorated.

Act of sale to be passed before purchasers.. ....Esq. H. P. within 45 days at expense of purchaser. Possession to be given subject to the present lease.

If this offer is acoepted, I will deposit 10 immediately with you as part of the purchase prioe, which deposit is to be non-interest bearing and is not to be ernest money; either principal hereto reserving the right to demand speoific performance.

In the event the title is not valid, this contract shall be null and void without prejudice however, to the commission which is erned upon acceptance of offer. Should either fail to comply with the térmi of this offer if accepted, I obligate myself to pay the commission and damages.

This offer is to remain good and irrevocable until June, 15th. 1930.

Signed- Mrs. I.Smith .

1817 Hapoleon Ave.

Mrs. A. Baldwin,

Y/e submit the above.

Signed- Leo Fellman.

by C. A. Rosenberg.

Hew Orleans, June, 14th. 1930.

Leo Fellman.

I accept the above offer and agree to pay you 3 fí commission on purchase price.

Signed- Mrs. A. Baldwin.

Tie have quoted the full' tenor contained in plaintiff's petition, and we have copied in this opinion the entire contract alleged to have been made in this cause with the signatures of all parties attached thereto, and we fall to find a single allegation in the petition which embrases, in our opinion, substantially part of the oontraot to which Mrs. Smith, defendant, is oited to he answerable, for the reason, that in the oontraot, "Subject to homestead loan 115.000.". There is nothing in the petition whioh avers that defendant failed in any way to oomply with the conditions of the oontraot, or that she made an endevor to do so. The allegations of the entire petition fail to state this fact, and to our minds, this fatal to plaintiff's cause.

A provision, as in this case, was a proviso, reading; as stated, "subject to Homestead loan $15,000.". Without it evidently the defendant could not, and never intended to have purchased this property, and without that there could be no liability on her part to plaintiff.

The Civil Code provides, Art. 3016.- "The broker or inter-mediatory is he who is employed to negotiate between two parties, and who for that reason is considered the mandatory of both.

Kird vs. New Orleans. 105 L. 226. " It is a familar rule of practice that an exception of no cause of action is held to admit for the purpose of trial thereof, the truth of the averments of the petition.

Conoeeding the matters of faot alleged, this plea tenders the issue on the faoe of the pspozc petition, that no case is presented entitling the plaintiff in law to recover."

Bouligny vs. Geary. 21 L. 642.- A peremptory exception that the petition discloses no cause of aotion, admits for the purpose of the trial of the exception that all the allegations in the petition are true, and no amount of evidence can have any influence in determining the question raised by the exception.

To the same effect is, Adams vs. Mouton, 1 Mc. Gloin Rep. Court of Appeal 310.

For the reason herein assigned, it is ordered adjudged and deoreed, that the Judgment of the lowere Court he, and the same Is hereby affirmed. Costs of both Courts to he paid by •plaintiff.

-Judgment Affirmed^  