
    (103 So. 182)
    No. 24916.
    EAGLE TRADING CO., Inc., v. DELTA MOTORS CO., Inc., et al.
    (Oct. 14, 1921.
    On the Merits Feb. 2, 1925.)
    
      (Syllabus by Editorial Staff.)
    
    1. Appeal and error <8=790(2) — Dismissal of plaintiff’s appeal in action to annul contract of sale held unwarranted.
    Dismissal of appeal by plaintiff in action to annul contract of sale of automobile trucks held unwarranted on ground that, since appeal was taken, and after lapse of delays for taking a suspensive appeal, property was sold by sheriff under order of seizure and sale.
    On the Merits.
    2. .Sales <8=391(5) — Purchaser of trucks held not entitled1 to annulment of sale.
    Where trucks, purchased under an act of sale which contains stipulation that on default in payment of any of purchase-money notes all would become due and exigible, were on default voluntarily surrendered to prevent deterioration from use, held purchaser had but done voluntarily that which he could have been compelled to do, and no cause of action for annulment of sale resulted from such taking.
    Appeal from Civil District Court, Parish of Orleans; Wynne G. Rogers, Judge.
    Action by the Eagle Trading Company, Inc., against the Delta Motors Company, Inc., and others. Judgment for defendants, and plaintiff appeals.
    Motion to dismiss appeal overruled, and judgment affirmed.
    Hubert M. Ansley, of New Orleans, for appellant.
    Milling, Godchaux, Saal & Milling, and Erymire & Ramos, all of New Orleans, for appellees.
   O’NIELL, J.

This is an action to have a contract of sale of two automobile trucks declared violated and annulled, to recover the part of the purchase price that was paid, and for damages. Stated broadly, the allegations of the petition are as follows: The. automobile trucks were sold by the defendant Delta Motors Company, Inc., to E. G. MeCants, by act of sale before a notary public and two witnesses. A part of the price was paid in cash, and the balance was represented by negotiable promissory notes secured by a mortgage and lien on the trucks. The notes were transferred in due course by the Delta Motors Company, Inc., to the codefendant, American Bank & Trust Company. The trucks were sold by MeCants to plaintiff by a written contract in which plaintiff expressly assumed the obligation secured by the mortgage and lien. Plaintiff failed to pay the notes, or some of them, at maturity; and the bank, for itself and the Delta Motors Company, Inc., demanded that the trucks should be delivered to the garage of the motors company, to prevent deterioration of the trucks, pending a settlement of the past-due notes or an adjustment of the matter. The trucks were so delivered, and the motors company gave plaintiff a receipt for them. Two months later plaintiff filed this suit, claiming that the' acts of the bank and the motors company constituted a violation of the original contract of sale, and that the bank and the motors company were therefore indebted to plaintiff, in solido, for the amount paid on the purchase price, and for. damages, for plaintiff’s having been deprived of the use of the trucks, and for having to employ an attorney, etc. Each defendant pleaded that the petition did not disclose a cause or right of action. The pleas were maintained, and the suit was dismissed. Five months later plaintiff took this appeal from the judgment. Appellees have moved to dismiss the appeal, averring:

“(1) That subsequent to the judgment herein rendered in favor of defendants and appellees and against the plaintiff and appellant,' and after the lapse of the delays for taking a suspensive appeal, the- property made the subject of this suit was sold by the civil sheriff of the parish of Orleans under an order of seizure and sale.
“(2) That the plaintiff and appellant had adequate remedy prior to the sale of said property,, either by a suspensive appeal or by an injunction, to protect itself, which it failed to do; and that the appeal herein taken, which is a devolutive appeal, is not the proper remedy and comes too late.”

It is suggested that, if the allegations of the motion to dismiss the appeal are not admitted or accepted as true, the case should be remanded to allow appellees to prove that the trucks have been sold by the sheriff in foreclosure of the mortgage and lien. There is no occasion, however, for remanding the case for proof of the averment, because the fact would not be a cause for dismissing the appeal. Appellant is not suing to recover the trucks or to enforce a claim upon them. According to the allegations of the petition in this suit, plaintiff had no defense to the foreclosure proceedings, or right to prevent, by injunction or otherwise, the seizure and sale of the trucks to satisfy the debt secured by mortgage and lien on them. Even if this appeal from the judgment dismissing plaintiff’s suit had been taken within the time allowed, and on a bond sufficient for a suspensive appeal, it would not have stayed execution or prevented a seizure and sale in foreclosure of the mortgage and lien on the trucks.

The motion to dismiss the appeal is overruled.

On Exception of No Right and No Cause of Action.

THOMPSON, J.

The object of this suit and the facts alleged in the petition as the basis of plaintiff’s demand are fully stated in the opinion overruling the motion to dismiss the appeal. We shall not restate them, except in so far as may be necessary to the decision on the exceptions now under consideration.

The sole ground on which the plaintiff seeks to annul the sale of the two trucks from the Delta Motors Company to Ennis J. McCants and to recover the purchase price paid and damages for the loss of the use of the trucks is that the American Bank & Trust Company, the holder of the notes given for the unpaid portion of the price of the trucks, acting for itself and for the Delta Motors Company, demanded that the trucks be delivered to the garage of the motors company for the specific purpose of preventing the deterioration of the said property by use on the public streets pending adjustment of the notes, or an adjustment of the entire relations between petitioner and the bank acting for itself and for the motors company.

It is alleged that by the aforesaid action of the bank and the motors company in demanding and receiving the said trucks the plaintiff was deprived of the ownership, use, and possession of said trucks; that this action on the part of' the defendants was arbitrary and illegal, and had the effect of canceling and annulling the aforesaid sale.

If, as a matter of fact, the defendants, arbitrarily and without process of law, and without the consent of the plaintiff, had taken possession of the trucks and had disposed of them, then the plaintiff might have had a cause of action, and would have been entitled to some relief. And this would be true, even though the plaintiff had defaulted in the payment of the notes.

The authentic act of sale from the motors company to McCants contained the stipulation that on default of payment of any one of the notes or the interest thereon at maturity all the said notes were to become due and exigible without demand or notice.

The plaintiff admits that it had assumed the obligations of McCants, and that one or more of the notes had become due; that payment had been demanded; and that plaintiff was unable to meet the payment.

The act of sale imported a confession of judgment, and specially authorized the holder of the notes immediately to seize and sell the trucks for the balance of the unpaid price.

Instead of exercising their legal right of seizing and selling the trucks, and thereby dispossessing the plaintiff by law, the defendants demanded that the trucks be placed in the garage to prevent them from being deteriorated by use on the streets. The plaintiff consented to this demand, and voluntarily surrendered possession as requested. Under such circumstances the taking possession by the defendants was in no sense arbitrary or illegal.

By surrendering possession the plaintiff gained an extension of time and an opportunity of settlement and adjustment of the debt.

The failure to secure such settlement was plaintiff’s misfortune, but the transaction by which it lost possession of the trucks eertainly gave the plaintiff no right to complain | at the action of the defendants, which, according to plaintiff’s specific allegations, were to preserve and to conserve the trucks and not with the view of depriving the plaintiff of its ownership.

The defendants obtained, with the consent of plaintiff, no greater right nor advantage than could have been secured by process of law.

A party with capacity to contract is at liberty to do voluntarily that which he can be compelled to do by law.

The conduct of defendants under the circumstances as detailed in the petition affords no cause for annulling the sale of the trucks and certainly no cause for damages.

The plaintiff’s suit was properly dismissed on the exception of no cause of action, and the judgment is affirmed.

ROGERS, J., recused.  