
    Nettles v. Scott.
    The defendant contracted under a penalty to buy the plaintiff’s plantation for a certain sum, payable in a year, but to be discharged on the vendor’s obtaining a loan from bank on mortgage of the premises, by the vendee’s taking his place: — 7iel<Z, that as soon as the loan was obtained, the purchaser became liable to the penalty, on failing to take Ms vendor’s place as debtor to the bank.
    
      
      A notary may be employed as agent of tlie party to give notice in writing, as the second mode under the Code of putting the adverse party in default — See 6 L. 1S2, and cases there noted.
    The interest stipulated on the prico of a plantation, will be considered as a yearly sum "for its use and occupation, when the party or vendee is put in possession, independently of any damages or the penalty, the party may become liable for, on non-compliance with the terms of
    The party dissatisfied with the verdict of a jury is expressly allowed three days in which to move for and obtain a new trial; but ho may waive this right; and he will be considered as having waived it, when he neglects to avail himself of it. Having done so he cannot claim relief in this court, especially when he opposed the adverse party's attempt to obtain a new trial. —C. P. 558; 3 E. 429; 7 E. 451.
    [337] It is different in relation to new trials asked for, from the court. The party may well imagine he cannot change the decision, when he has no new argument to offer the same judge who rendered the first judgment.
    Appeal from the court of the third district for the parish of East Feliciana, the judge of the eighth presiding.
    This is an action to recover the sum of $1000, the penalty stipulated in a contract of sale in case of non-compliance, and ten per cent. per annum on the amount or value for the time the plaintiff was kept out of the price and use of his plantation. The suit is instituted on a written contract or agreement, the material parts of which are as follow:
    “ And the said James Nettles acknowledges he has made a contract of sale of land (or plantation), containing about 400 acres, for the price and sum of $5000, which was to be paid in cash, and that he gave possession of said land to said James Scott, in February last, but has not made a title to him; having previously offered the same to be mortgaged to the Union Bank for a .loan; and the money not having been obtained from the bank, it still stands offered and will be mortgaged if the money is obtained: And should.he mortgage the land he will make the title; or if he should not, then he will execute a title at any time that he, the said Scott, calls for it and pays him the money. And the said James Scott acknowledges that he has made a contract with James Nettles, by which he is to give the said Nettles $5000 cash for the tract of land above mentioned: Further acknowledges that he has possession of said land, and has the tillable, part in cultivation; and if the said Nettles should mortgage said land to the bank, that he will receiye the title from said Nettles with that encumbrance; and that he will make the payments in the bank as they fall due to the amount of $5000, in the payment for said land. And should he not get the money out of the bank, that the said Scott agrees to make said payment to said Nettles and take the title within twelve months from this date: And further that as he is cultivating the land, he will pay ten per cent, interest on the amount of .$5000, from the 15th day of February, 1836, until the title is executed and the money paid. [338] And further, the said James Scott agrees and consents that should he fail to comply on his part he forfeits and agrees to pay to the said James Nettles the sum of one thousand dollars, &c. &c.
    “ Signed, &e., this 16th day of April, 1836.
    “JAMES NETTLES,
    “ JAMES A. SOOTT.
    Witness,
    “M. Simpson,
    “ J. D. Coleman.”
    
      The plaintiff alleges that he succeeded in obtaining money on this mortgage; and on the 27th January, 1837, notified said' Scott that he was then ready to make the title to him and to comply with his part of the contract in every respect, and appointed a day for the purpose of meeting said Scott to comply with their contract, and did appear and was ready as he has always been, to comply, but that the defendant, Scott, failed to attend or to comply with his said contract in any respect although he has been legally notified and put in default. He prays judgment for the sum of $1000, and for interest at the rate of ten per cent, per annum on $5000, or the price of his plantation, from the 26th February, 1836, until Scott shall comply with his said agreement.
    The defendant excepted to the plaintiff’s right of action, and averred that he could not maintain the suit because being sued on a penal obligation, he had never been put in default on the principal obligation. For answer to th<? merits he pleaded a general denial and prayed that the suit be dismissed.
    On these pleadings and issues the cause was tried.
    The plaintiff offered in evidence the contract or agreement sued on; and also a notary public as a witness and a letter written by the notary at his in-' stance, notifying the defendant that the plaintiff had obtained the loan from bank in the manner agreed on; that he was ready to make a title and comply with the terms of their agreement according to the stipulations therein contained.
    The cause was submitted to a jury who returned a verdict in favor [339] of the plaintiff for $1000 as damages set forth in the contract.
    The defendant made a strenuous effort to obtain1 a new trial, which was overruled, and he appealed from judgment confirming the verdict.
    Andrews, for the plaintiff,
    prayed that the judgment be amended so as to allow the plaintiff his ten per cent, on the price of the plantation, or sum of $5000, from 26th February, 1836. In all other respects the judgment is correct.
    -Muse, for the defendant,
    insisted on the reversal of the judgment:
    1. The_ term allowed by the contract (which forms the subject of the contract) had not elapsed when the plaintiff, Hetties, attempted to put the defendant, Scott, in mora. See the following authorities. La. Oode, arts. 2048, 2052 and 2113.
    2. The proceedings resorted to by the plaintiff before the notary public were informal and insufficient to put the defendant in mora, admitting that the term had elapsed. 6 Martin, H. S. 229 and 623.
    3. The penal obligation now sought to be enforced and on which the judgment appealed from was rendered, is grossly and glaringly usurious and as such ought not to be enforced by this honorable court. See the contract and the following authorities. 7 La. Bep. 188, 209; 3 Id. 391; La. Code, arts. 2113, 2121, 1929.
   Martin, J.

delivered the opinion of the court.

The defendant is appellant from a judgment by which the plaintiff has recovered the penalty of one thousand dollars, for the breach of a contract, for the purchase of a plantation from the latter. The appellee has prayed the [340] amendment of the judgment, so far as it disallows his claim under the contract, to a yearly sum of five hundred dollars or ten per cent, on the price of the plantation for its occupation and use.

The dismissal of the appeal has been prayed for on several grounds, neither of which we have considered, because the conclusion at which we have arrived on the merits, is more favorable to the appellee than the dismissal of the appeal.

1. The counsel for the appellant has contended, that the term allowed by the contract had not elapsed when the plaintiff attempted to put the defendant in mora.

2. The proceedings resorted to by the plaintiff before the notary, were informal and insufficient to put the defendant in mora ;• admitting the term had elapsed.

3. The penal obligation now sought to be enforced and on which the judgment was rendered, is grossly usurious.

I. By the contract the defendant bound himself to purchase the plantation of the plaintiff for the sum of five thousand dollars, to be discharged in case the plaintiff obtained from the Union Bank a loan of money on a mortgage of the premises, by the defendant taking his place as debtor of the bank. The loan was obtained and the defendant, in our opinion, became thereby bound to relieve the plaintiff from his responsibility to the bank, as soon as he was informed that the loan had been granted, and requested to take the plaintiff’s place. It is true that in the event of the plaintiff’s failing to take the loan, the defendant had one year within which he should pay the price. His counsel has contended that this delay of a year, extended to the first hypothesis. It does not appear to us that the district court erred in coming to a different conclusion.

II. The law provides that one party to a contract may be put in mora, by the other in several ways: 1. By a suit. 2. By a demand in writing. 3. By a protest. 4. Verbally in the presence of two witnesses. The plaintiff in this case seems to have resorted to the second mode of putting his adversary [341] in mora, to wit, by writing. He was not bound to give the written notice in person, and he employed as his agent for this purpose the notary in whose office the act of sale was intended to be passed. The defendant did not object to this mode of notice, but replied, “that he would attend on the day mentioned.” The written notice given by the notary was not an official act but had to be proved by witnesses and was so proved. The defendant was therefore properly put in mora, by a demand in writing; being one of the modes pointed out by law. La. Oode, art. 1905, Ho. 2.

III. There was no usury in the contract. The defendant was put in immediate possession of the premises and engaged to pay a yearly sum for the use and occupation of the plantation. This payment was independent of the price or consideration of the sale, and of any damage or penalty to which he might become liable on his neglect and refusal to comply with any other terms of the contract; and would have been demandable, even if both parties had afterwards agreed not to carry the sale into effect. It was part of the penalty stipulated.

In asking to have the judgment amended by allowing him the yearly rent, or sum stipulated for the use and occupation of the land, the appellee’s counsel has expressed his doubt of our ability to accede to his request “ inasmuch as the case was tried by a juryP

The party who is dissatisfied with the verdict of a jury, has, by an' express provision of the' Code of Practice, an opportunity of obtaining relief by a motion for a new trial within three days after the verdict is given, and judgment rendered thereon. Code of Practice, art. 558. This, however, being introduced for the exclusive benefit of 'the party aggrieved, he is perfectly at liberty to waive it; and he cannot complain if he is considered as having waived it, when he neglects to avail himself of it within the time or period fixed by law.

In this case the plaintiff not only declined the means of obtaining below, what he claims now at our hands; but by opposing the defendant’s attempt to obtain a new trial he deprived himself of the means of obtaining [342] the relief which he seeks. What we have just said will not, we hope, he extended to the omission to ask a new trial in a case not tried by a jury. The party who is dissatisfied with the decision of the court may well imagine that it is not worth his while to attempt to convince the judge of his error, when he has no new arguments to offer.

When a verdict is set aside the case must necessarily he submitted to a new jury, in which none of the first jury can he placed: Besides, there are various reasons that will induce this court to refrain from opposing the verdict of the jury, which have no force when applied to the decisión .of the court. The members of this court cheerfully disown individual superiority of any kind over the gentlemen presiding in the other courts; «hut this tribunal has, from its numbers and situation, a considerable advantage over the inferior courts of the State to examine and decide on eases brought before it on appeal.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be affirmed, with costs.  