
    NO. 7830
    MRS. ULYSSE BERTHELOT VS HOME BUILDERS REALTY CO, INC.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   OPIJÍIOH.

St. Paul, Judge.

Plaintiff agreed to purchase and pay for in monthly instalments, certain swamp lots, all payments to he completed in about two years under pain of forfeiture; whereupon defendant was to execute a deed for same. Plaintiff additionally hound herself not to erect any building on said lots to cost less than a certain sum, and not to sell to persons objectionable to defendant.

Defendant agreed to pay all taxes for one year from date of contract, and guaranteed tb build levees and canals and cut certain streets and boulevards, or return the amount paid with 10"¿ added.

It was specially agreed that time was of the essence of the contract between the parties.

I.

when plaintiff had completed her payments and was ready for her deed, defendant had practically done nothing in the way of building canals and levees to drain the land; much less had it cut and laid out any streets and boulevards; so that plaintiffs lots were not even discernible from the surrounding highlands and still less oould they be approached. And what is even more to the purpose defendant was not ma':ing or pretending to males any effort whatever to carry out its part of the agreement having long before ceased all such efforts.

Wherefore plaintiff maleas this claim for tha return of her money.

IX.

It is clear from the nature of the contract (and confirmed-hy the evidence) that plaintiff was not engaged in a land speculation hut in the purchase of a site for a home in a projected residential section; and henoe that the improvements were to have heen completed within a reasonable time.

Row what would he a reasonahl'e time under the circumstances is fixed hy that provision of the oontraot itself relative to the payment of a year's taxes hy defendant; for the presumption is that defendant meant to pay .the taxes only so long as plaintiff could not have the use of the property; and thi3 is confirmed hy the repeated promises hy defendant that the improvements would he completed within that year.

III.

But the parties had agreed that time was of tha essence of the contract between them; and so indeed it was for plaintiff who was waiting to start the building of her home.

She trial judge therefore properly excluded any evidence tending to excuse defendant for failure to perform its part of the contract within the time above mentioned; the it further time at this stage of the- controversy would he in effect to excuse it altogether from eve/j/performlng its obligations under the contract.

The judgment appealed from must therefore he affirmed.

Judgment Affirmed.

New Orleans La, May 21st, 1920.  