
    7315
    GEORGE P. CAIRE VS MUTUAL BUILDING & LOAN ASSN.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   oí isioa

St Paul, Judge.

Plaintiff claims of defendant #1105. He alleges and it is not denied; "Shat on or about the 11th day of Uarch 1915, petitioner ^entered into a written contract with the defendant, Whereby defendant was to purchase from him a certain lot of ground x x x and was to erect thereon a house according to specifications agreed upon between petitioner and the defendant, and at the completion of said house was to transfer by authentic act said lot and the improvements thereon for the sum of #8660; and petitioner was to pay in oash #650 and for the balance thereof he was to give his promissory note for #8000 secured by vendor's lien and privilege on said ground and improvements)

She evidence shows that the building was completed on July 2nd 1916; that plaintiff then accepted the same and went at onoe into physical possession thereof; but that defendant although requested to do so had failed and neglloted to make a formal deed thereof to . plaintiff up to and beyond September 29th, 1915; that on said 3eptembar S9th the building was damaged to the extent of #1105 by the great hurriaan£which swept over this City on that day.

As the property has since been formally deeded to plaintiff who has repaired the damage# at his own expense- (in a manner, and under reservation of rights, the details of whloh are not pertinent) the only question here presented is whether the lass caused by this hurricaneshould fall on plaintiff or defendant.

Ercm the foregoing it is clear that according to plaintiff's own Judicial admission there existed between him and defendant a written contract which amounted at least to a promise of sale; and that this was unconditional, except that a building was to be erected (Which was done) and that defendant was to execute a formal deed to the property and plaintiff was to pay the price or furnish his note for lb

How by Article 2462 C. C. " A promise of sale amounts to a sale when there exists a reciprocal consent of both parties as to the thing and the price thereof."

And Artiole 8466 C, C, "The sale is considered perfeot Retraen the parties, sad the property is of right acquired to the purehssor with regard to the seller, as soon as'there-exists an agreement for the object and for the prloo thereof, although the object bas not yot been delivered nor the -price paid,"

iron those two artiolos it results that as between the parties, the ownership of tho thing passes by tho aero consent and agroomnt of the parties,

from the last artiolo (8466) it is also olear that neither tho delivery of tho thing nor the MMt payment of tho prioo are suoh oondltions as are spoken of in Article 8471 C. C. and suspend tho transfer-of ownership until their fulfillment, Whloh latter artiolo however does fjti apply to suoh things as, for ins taños, the ooapletion of a building.

Again by Article 2479 C. C. "The law considers the tradition or deliver) of immovables as always aoeoapanylmg tho public set whloh transfers the property x x x."

And by Article 8467 C. C. "As - soon as the oontraot of sale is completed the thing is at the risk of tho buyer, x x ,"

Shis however is subjeot to modification; for Instanos Article 8470 C. C. "If the seller delays to deliver tho thing and it is destroyed, oven by a fortiAitous ovont, it la he who sustains the loss, unless Jit appear certain that the fortuitous ovont would equally have oooaaloned the destruction of tho thing In the buyers possession after delivery." (Italics ours).

It ## therefore seems certain that as between himself and defendant plaintiff was the true owner of tho property from tho time tho building was oomplatod and ready for delivery; nevertheless as long as defendant failed to make a legal delivery by formally deeding the property to plaintiff, it continued to remain wholly at defendants risk except An so far as it might boi/estroyed by a fortuitous event whloh would equally have destroyed it oven had the formal deed to plaintiff been executed.

New Orleans, La, April 1918.

But if this last there Is not the slightest doubt; a formal title ih the name of plaintiff would oertainly not have saved this property from the fury of the storm.

We are therefore of opinion that the loss must fall on plaintiff.

It is said however that because the so called "sale and resale" between Homestead Association and their borrowers have been given by statute the effect of sales in so far that a vendor's privilege results therefrom, therefore they are sales in all' respects.

We shall not go at length into this proposition, since we have dealt with the transaction herein involved exactly as if defendant had originally acquired the property from someone other than plaintiff being oareful to say that plaintiff became the owner of the property when the building was completed and ready for delivery and by virtue of the written promise of sale which he sets up in his petition. In other words we have dealt with the transfer from plaintiff to defendants as if it had been a real sale, and the agreement to retransfer as if it were an original and independant promise of sale.

But simply for the purpose of keeping the record straight, as it were,and not because it has any bearing on the oase, we wish it understood that, we are not prepared at this time to adopt the view that merely because by statute certain results are made to flow from certain transactions, other results must also flow from them, which other results may not at all have been in contemplation of the lawmakers.

She judgment appealed from is therefore affirmed.

Affirmed.  