
    NO. 8019.
    JOHN B. VERGNES VS ELIAS JOHNSON.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   OPIHIOH.

Bt his Honor John St.Paul.

This Is a suit for possession of allege! leased premises Because failure to pay the "rent" promptly. The defense Is 1. That no legal and sufficient demand for payment was ever made upon defendant, and That the alleged lease was in fact no lease at all hut an aotual sale of the -premises on the instalment plan.

On May 1st 1912 plaintiff leased the premises to the defendant fo: three years at a rental of $26 per month payable in advance, and the leasee to pay the taxes and insurance. The lessee was to have, at any time during the lease, the privilege of buying the property for *2000, subjeot to a credit for all the rent paid after deducting therefrom interest at ifo on the purohase price from the date of the lease to the date of the sale "the same as if the sale had taken place at this date"; the adjustment of interest to be# made from year to year.

How a simple oaloulation will show that if this were indeed a sale, the purchaser would have reduced his indebtedness at the end of to exactly $662.47; and at the end of nine years he would /V A have paid the whole purohase prioe less only $62.2b.

The defendant paid promptly during the first three years; for at-the expiration thereof the lease was renewed for another three years on the same terms; but the purohase price was now reduced (as it should have been) tp precisely $1486.62.

Again the defendant paid promptly during these next three years; for at the expiration thereof the "lease" was again nenewed for another three years on the same terms; hut the purchase prioe was now still further redticed (as it should have been) to precisely $853.47. This was on April 1st 1919.

After this defendant again paid promptly for a while, and sometimes even in advance. But by reason of illness he fell behind about February 1920; for the February payment was made in April and the March payment on May 31st.

On May 31st; the notes for April and May being then a due and unpaid, plaintiff served notice to vacate, and then brought these proceedings.

3#-

The writer hereof is clearly of opinion that the alleged lease herein involved evidences a sale of the property on the instalment plan; that the fact of defendant's having finally bound himself for the whole purchase price (less a mere trifle of $85 out of $2000) distinguishes this case from Doullet Vs Rush, 142 La 443, and brings it within Barber Asphalt Oo vb St Louis Cypress Co, 121 La 152; and accordingly he thinks that plaintiff is neither lessor nor owner of the property, and has no other rights therein or thereon but to recover the balance of t|ie purchase price and interest; that having ; i-*-/— already received nearly two thirds of the purchase price^he cannot both keep that anié alao take hack the property.

November 8th, 1920.

But as his eollagues think it unnecessary to oonsider that phase of the oaee he will not elaborate thereon.

II.

But we are all of opinion that no proper ana sufficient demand for payment was ever made upon defendant. The notes given by him appear perhaps to have been made payable st the premises, but even if not so made payable it was there that defendant has his domicile and there that the notes should have been presented and payment demanded; and this was not done. The faot that defendant was then away from the city makes no difference; it was there that plaintiff served his notice to vacate, there that he had the citation served, all in defendants absence; and it was there that he should have made his demand for payment, even in defendant's absence: Frederico vs Scheinkraut, #7921; Lafayette Realty Co vs Puglia, 10 Orleans App. 105; Bonnabel vs Metairie Cypress Co. 129 La 928; Dalloz, Code Nap. Art 1728, No. 273.

The judgment appealed from is therefore reversed, and it is now ordered that plaintiff's demand be rejected at his costs in both oourts.

Hew Orleans La,  