
    No. 10,545.
    J. U. Payne, Jr., vs. S. L. James and Louis Trager.
    Unci or a contract o£ lease which binds the lessee to keep the property in good repairs, and to surrender it at the expiration o£ the lease in the same good order-in which he received it at the beginning o£ the lease, he has the option to make 1 lie required or necessary repairs at the end o£ the lease, and his lessor has no-cause o£ action £or damages for his failure to make repairs until the expiration of the lease.
    lienee, when the cause of action arises, the conditions on which the work was to ho done have ceased to exist, and in such a case the action for damages need not he preceded by a putting in default of the lessor. (C. C., Art. 1933; Exception I.)
    The, lessor who soils the leascdproperty during the continuance of the lease, with the express reservation of all his rights and claims as lessor, specially including the right to sue for damages caused to the property during the possession of the lessee, has a legal right of action for such damages after the expiration." of the loase, unaffected by the sale made in the meantime.
    
      APPEAL from the Thirteenth District Court, Parish of West Feliciana. Semple, J.
    
    
      S. MeO. Laiorason and Harry H. Hall for Plaintiff and Appelle:
    1. When a lessee contracts to deliver up a plantation In as good order and condition as when received, at the end of his lease, .ho has until the end of the last day of that lease to perform that obligation; and he would not bo in default, therefore, until the expiration of his lease.
    2. The putting in good order and condition was to bo performed during the lease; the lessee, therefore, has no right to burden the property with that detention after its delivery back to the. owner.
    3. Therefore, the thing to be “done by the contract was of sucha nature that it could only be * * * done within a certain time, which lilts elapsed; r * * the debtor would not b(j put in legal delay to entitle the creditor to damage.’’ (J. (\ 1933 (1927). Marcado, Vol. 4, Sec. 515, p. 416.
    4. No rule of law requires the party claiming damages for an injury sustained on account of the non-performance or defective performance of a contract for work and labor done, to first put his adversary in mora before he can be permitted to prove his damages. 37 An. 470; 9 La. 174; 14 An. 81; 84 An. 211.
    5. The delivery of the plantation, not conforming to the contract requirements, was not the delivery contemplated by the contract; was not a performance of the contract; was, on the contrary, an active violation of the contract. Vide Levy vs. Schwartz, 34 An. 214.
    6. The obligation contracted by the vendor to cancel a mortgage within a given time is a condition precedent to the collection of a note, and ho need not be put in default. Walker vs. Oueullu, 15 An. 689.
    7. When one sells a plantation which has been damaged and depreciated by the act of his lessee, the right of action against that lessee for the injury so done prior to the sale is not transferred to the vendee, unless by express subrogation, but remains in the vendor. Clark vs. Warner, 6 An. 408; 14 An. 119.
    8. Not only was there no subrogation to the vendee in the instant case, but the vendor expressly reserved the right to himself to claim these damages; and, as his petition avers, actually received as the price of his plantation $5000 less than he would have sold it for without this injury to which the lessee subjected it.
    
      W. W. Leake and R. G. Wiekliffe for Defendants and Appelles:
    An action for damages resulting from tlie passive violation of a commutative contract or one containing mutual stipulations and covenants between the contracting parties, must be preceded by putting the obligor in mora, as a condition thereto; it is the duty of the plaintiff to allege and prove it, else ho can not recover. It. C. C. 1932; 38 An. 781; 37 An. 839 ; 30 An. 112G.
   The opinion of the court was delivered by

Poem!, J.

Plaintiff claims damages in the sum of five thousand dollars for alleged violations of a contract of lease, in which the defendants, as lessees, had bound themselves to keep the leased premises in good order and repair during the continuance of the lease, and at the expiration thereof, to surrender the property in a like good order and repair, which they utterly failed to do.

Plaintiff appeals from a judgment which sustained an exception to the effect that his petition, which alleged a passive violation of a contract, contained no averment that the debtor had been put in default.

Plaintiff’s counsel argue with much force that the violation of the contract, disclosed by their allegations, is an active, and not a passive, violation; and that therefore a putting in mora was not an indispensable prerequisite to the demand in damages.

But for the purposes of the conclusions which we have reached in the case, we find it unnecessary to discuss that question.

Conceding, therefore, for the argument, that the alleged violation of the contract is passive, and that the case is controlled by the provisions of Art. 1933 of the Civil Code, we think that plaintiff’s demand on the face of the pleadings is amply protected by the first exception which the Code makes to the article under consideration, and which reads as follows:

“When the thing to be given or done by the contract was of such a nature that it could only be given or done within a certain time, which has elapsed, or under, certain circumstances, which nodonger exist, the debtor need not be put in legal delay to entitle the creditor to damages. ’ ’

Prom the contract, which is annexed (to the petition, it appears that the lease was for a term of five years, and that the clause which has a bearing on the present controversy reads as follows:

“The lessees further obligating themselves to keep the herein leased premises, including all buildings, fences, ditches, improvements, etc., in good order and repair during the continuance of this lease, and at the expiration hereof to surrender the same to the said lessor in the like condition, good order and repair, in which they acknowledge to have received the same.”

And the charge is that in violation of their agreement the defendants allowed the buildings to become dilapidated, the fences to fall, and the ditches to become choked and obliterated, in consequence of which the lessor was damaged in the amount claimed herein.

Under a proper construction of the contract it appears to us that at any time before the expiration of the lease, even a few weeks before that time, the lessees conld have repaired the buildings, rebuilt the fences and reopened the ditches, all in a manner sufficient to have restored the leased premises in the same good order and repair in which they had received them. In such a case the lessor would have had no cause of complaint under the law. It is on the other hand equally clear that it was too late for the lessees to undertake such works and repairs after the expiration of the lease. Hence it follows that the time for action on the part of the lessor did not occur or arise until or before the expiration of the lease, although he had already suffered apparent damages.

But at about that time, the circumstances under which the lessees could restore the leased plantation to proper repair and good order, and which circumstances were their possession of the premises as lessees, had ceased to exist. It is therefore apparent that when the obligation of the lessees to restore the leased premises to good order and repair for the purpose of surrendering the same to the lessor culminated, the latter had yet no authority in law to require the necessary repairs, and that his right only accrued at the very moment that the possession of the premises reverted to him, under the contract. But, as we have said, it was then too late to coerce the lessees to a specific performance, and the law can not impose a useless proceeding, as a prerequisite to a legal demand. Beck vs. Fleitas, 87 An. 493.

We therefore conclude and we hold that in this case the law could not, and did not, require that plaintiff’s demand should have been preceded by a putting in default. In plaintiff’s petition it is averred that nearly a year before the expiration of the lease he had sold and parted with the possession of the leased plantation; and that circumstance is made the ground of a second exception on the part o'f the defendants, who urge that this sale having been made before the time for repairing had elapsed, plaintiff has no interest in the value of said repairs. An easy answer to that contention would be that the lessor is not here claiming the value of the neglected or omitted repairs; his demand is for the damages caused to his property by the neglect or failure of the lessees to make the repairs and works stipulated in the contract.

In his petition he avers that owing to the dilapidated condition of the plantation, as a result of the lessee’s violation of their obligation, he was compelled to accept as purchase price therefor, $5000 less than would have been its actual or market value, if the same had been in proper repair, or in the same order in which the lessees had received it at the commencement of the lease.

We are clear in the opinion that such allegations unquestionably disclose an actionable interest in the complaining lessor. But the present ease is still stronger. Plaintiff alleges that in the act of sale which he made |of the property he specially reserved all his rights and claims as lessor, including in terms the right “to sue for the recovery from the said James and Trager of all damages which the said plantation should have sustained while in their possession.”

It has been held in our jurisprudence that “the purchaser of property is presumed to acquire all actions appurtenant to the property and necessary to its perfect enjoyment; but as to damages actually suffered by the vendor before the sale they are personal to him and can not be recovered by the purchaser without an express subrogation.” Clark vs. Warner, 6 An. 408.

In this case the damages claimed by the lessor were continuous from the beginning to the end of the lease, and an amount of $5000 was alleged to have been already occasioned at the time of the sale, although the right to claim the same had not yet accrued. And the vendor, far from subrogating his right to claim these damages to his vendee, specially reserved his right of action thereunder.

Hence we conclude that there is no merit in the second exception.

We note that the District Judge rested his decree exclusively on the strength of the first exception without reference to the second. But both were means of defence submitted below, and both were proper, subjects of judicial consideration on appeal; and the ends of justice were best subserved by disposing of both at this time. Executors vs. Schenck et al., 41 An. 465.

It is therefore ordered that the judgment appealed from be annulled, avoided and reversed, that the exceptions herein interposed by the defendants be overruled and dismissed at their costs in both courts, and that the cause be remanded to the District Court for further proceedings according to law.

Mr. Justice Fenner recuses himself on account of affinity to plaintiff.  