
    Gertie Brunet COLLINS et al., Plaintiffs-Appellants, v. Antoine BRUNET and State Bank and Trust Company of Golden Meadow, Defendants-Appellees.
    No. 4831.
    Court of Appeal of Louisiana. First Circuit.
    June 30, 1959.
    Rehearing Denied Aug. 31, 1959.
    Certiorari Granted Oct. 9, 1959.
    
      Guzzetta & LeBlanc, Thibodaux, for appellants.
    Harvey Peltier, Donald L. Peltier, Thi-bodaux, for appellees.
    Before LOTTINGER, TATE and HOOD, JJ.
   HOOD, Judge ad hoc.

Three sisters, Mrs. Gertie Brunet Collins, Mrs. Isabelle Brunet Roddy and Mrs. Susanne Brunet LeBlanc, instituted this action against their brother, Antoine Brunet, and against State Bank and Trust Company of Golden Meadow, to enforce specific performance of an alleged contract to sell immovable property located in La-fourche Parish and to cancel and erase from the Mortgage Records of that parish an act of mortgage affecting said land. They pray, in the alternative and in the event the mortgage should not be cancelled, that judgment be rendered in their favor and against Antoine Brunet for damages. After trial of the case on its merits, the district court rendered judgment in favor of defendants, and plaintiffs have appealed from that judgment.

Before an appeal was taken to this court the mortgage which plaintiffs sought to have cancelled was actually erased from the records of Lafourche Parish, and this suit was dismissed insofar as it was directed against State Bank and Trust Company of Golden Meadow.

The evidence establishes that prior to December 1, 19S3, plaintiffs and defendant, Antoine Brunet, along with a number of other persons, were co-owners of the following described tract of land situated in Lafourche Parish, Louisiana, to-wit:

A certain tract of land situated in the Parish of Lafourche, State of Louisiana, on the left descending bank of Bayou Lafourche at about forty eight (48) miles below the City of Thibodaux, Louisiana, measuring one (1) arpent front, more or less, on Bayou Lafourche by a depth of forty (40) arpents, said tract of land is bounded above by property formerly belonging to Josephine Ledet, now property of vendors, vendee and other heirs of the late Constance Ledet Brunet and below by property belonging to Mrs. Gamite Chouest, wife of Leonce Guidry, now or formerly, together with all the buildings and improvements thereon.

On May 4, 1953, some of these co-owners instituted a suit against the others demanding that this property, and other lands which they owned in common, be partitioned by licitation. Before that suit was brought to trial, however, an amicable settlement of it was made by the parties, uiider the terms of which defendant, Antoine Brunet, agreed to purchase the above described tract of land from all of the other co-owners for the sum of $4,000. In accordance with that agreement an act of sale was executed by all of the other co-owners, including the plaintiffs in this suit, selling and conveying the above described tract of land to defendant. That act of sale is dated December 1, 1953, and was filed for record in Lafourche Parish on February 5, 1954. The consideration stipulated in the deed was paid by defendant, and all three of the plaintiffs cashed the checks which were issued to them representing their portions of the purchase price.

Plaintiffs allege and contend, however, that prior to the time the partition suit was instituted all of the co-owners, except plaintiffs, had agreed that defendant, Antoine Brunet, would purchase this property from the other co-owners for the sum of $4,000, but that plaintiffs had not joined in that agreement because they believed the land to have a greater value. They further allege that after the partition suit was instituted plaintiffs and defendant then entered into an agreement to the effect that plaintiffs would join the other co-owners in a private sale of this property to defendant, but that after that sale had been completed defendant would reconvey to plaintiffs a smaller tract of land out of the property he would have acquired by that deed, which smaller tract would bear a ratio in footage equal to their respective undivided interests in said tract, and that the price of such retransfer would be the amount that plaintiffs would receive as their share of the proceeds of the private sale to defendant.

Plaintiffs then allege that in conformity with that agreement defendant executed a “counter letter,” dated September 24, 1953, which reads as follows:

“State of Louisiana “Parish of LaFourche
“September, 1953
“To Whom It May Concern:
“That I, Antoine Brunet do hereby oblige myself, heirs and assign, to sell to the following sisters,
“Mrs. Gertie Brunet Collins; “Mrs. Suson Brunet LeBlanc; “Mrs. Isabelle Brunet Roddy:
“their individual share or part that they have or own as heirs in property that I have or will acquire from the Estate of Armand Brunet, that they have elect or choose to take their share in land instead of cash, which said property being situated on the left descending bank of Bayou Lafourche, at about Forty Six miles from the City of Thibodeaux, measuring one arpent front by depth there to belonging and being bounded above by land of Armand Brunet, and below by land of Louis Guidry, after that I will have title to same.
“Sign this-day of September 24, 1953 in the presence of two witnesses herein undersigned.
“Antoine Brunet (signed)
“Witnesses:
“S. P. Duet (signed)
“Joseph Charpentier (signed)”

Attached to and forming a part of this document is an affidavit executed by Joseph Charpentier on February 25, 1954, attesting that he executed the above quoted document as an attesting witness, and that it was signed by Antoine Brunet on September 24, 1953. This document, with the attesting affidavit, was filed for record in the Conveyance Records of Lafourche Parish on February 27, 1954.

Plaintiffs contend that the document signed by defendant, dated September 24, 1953, is a “counter letter” or an “agreement to sell in the form of a counter letter” or an “agreement to retransfer,” executed by defendant simultaneously with the signing by plaintiffs of the act of sale dated December 1, 1953, and as such it is binding on defendant. They further contend that prior to December 1, 1953, each of said plaintiffs owned an undivided interest in and to the above described property. They demand primarily that judgment be rendered declaring plaintiffs to be the owners, in in-división, of a portion of said property, the portion so demanded having a frontage of 56.5 feet on Bayou Lafourche with a depth of 40 arpents. They pray, in the alternative, that judgment be rendered condemning defendant to transfer to each of said plaintiffs, an undivided %2 interest in and to the entire tract above described, which tract according to its description has a frontage of one arpent on the bayou. We assume that a frontage of “one arpent,” as used in that description, means a frontage of 192.24 feet.

Defendant contends that the document which he executed on September 24, 1953, is null and of no effect because there is no mutuality of obligation. He pleads, in the alternative and in the event the document is found to have legal effect, that “plaintiffs have sold their undivided interest and received good and valuable consideration, and therefore elected to receive cash instead of a portion of the land.” Further, in the alternative, defendant specially- pleads estoppel in that plaintiffs sold their undivided interest, received good and valuable consideration therefor, and at the time of said sale made no complaint concerning that transaction.

The trial judge supplied written reasons for judgment and one of the reasons he assigned for rejecting the demands of - plaintiffs was that the document which plaintiffs seek to enforce lacks the essential requirements necessary to entitle them to demand specific performance. In that connection the trial judge said:

“We make the further observation that the instrument of September 24, 1953 is in the nat 'e of a contract or promise to sell. Article 2462 of the [LSA-] Civil Code sets forth the requirements which must be present in a contract or promise to sell in order to give either party the right ■ to enforce specific performance thereof. This article states that there must exist a reciprocal consent' of both parties as to the thing, the price and the terms. In the case of Young et al. v. Cistac, 157 La. 771, 103 So. 100, 101, a purchaser of real estate offered to buy certain property for $5,682.50, terms 'one-half cash, note 7% interest’, and in passing upon the validity of the agreement in that case the court said: ‘The contract in this case is silent as to the terms for payment of the balance of the purchase price when one-half cash is paid, and therefore is lacking in one of the essential elements of an enforceable promise to sell, as defined by said article of the [LSA-] Civil Code (art. 2462).’
“At another point in the decision the court further held: ‘The contract must be fixed and the liability of the defendant so certain that the duty imposed upon him by the court in ordering the execution of the contract can be readily ascertained and as readily enforced.’
“In Corpus Juris, vol. 13, pp. 263, 264, [17 C.J.S. Contracts, § 3l], we find the following: ‘Until all understand alike, there can be no assent, and therefore no contract. Both parties must assent to the same thing in the same sense, and their minds must meet as to all the terms. If any portion of the proposed terms is not settled or no mode is agreed on by which it may be settled, there is no agreement.’
“An examination of the instrument of September 24, 1953 reveals that no definite price was fixed therein nor were the terms, as to how the price to be paid, fixed, and, more important, said instrument does not set forth what would be transferred, that is, whether an interest in the whole property or whether a specific portion of the whole property. It is apparent that at the time of the execution of said instrument there did not exist a reciprocal consent and understanding on the part of the plaintiffs and defendant as to the thing to be transferred. This is borne out by the fact that in plaintiffs’ petition it is alleged that it was the understanding of the parties that the defendant would transfer a specific portion of the whole tract, which portion was to measure 56.5 feet on Bayou Lafourche by forty (40) arpents in depth, while, in the alternative, it is further alleged that if the Court would find that it was not the intention to transfer a specific portion of the whole property, then the defendant should be ordered to transfer an undivided interest in the whole property. This clearly shows that the plaintiffs themselves were not sure or did not know exactly what was to be transferred to them. The fact that there was not a mutual or reciprocal consent of the parties as to what was intended to be transferred is further borne out by the defendant’s testimony, which shows that he was under the impression that he was to transfer each plaintiff sixteen (16) feet front by forty (40) arpents in depth.
“And therefore it appears to the court that an examination of the instrument of September 24, 1953 and the record in this case, in the light of Article 2462 of the [LSA-] Civil Code and the jurisprudence thereunder, discloses that the instrument herein relied upon by plaintiffs lacks the essential requirements necessary to enforce specific performance.”

We concur with the trial judge in that conclusion. Article 2462 of the LSA-Civil Code provides that:

“A promise to sell, when there exists a reciprocal consent of both parties as’ to the thing, the price and terms, and which, if it relates to immovables, is in writing, so far amounts to a sale,, as to give either party the right to enforce specific performance of same.”

The Supreme Court of this state has held repeatedly that the requirements set out in this article of the Civil Code are mandatory before either party may exercise the right to specific performance. In Lousiana State Board of Education v. Lindsay, 227 La. 553, 79 So.2d 879, 886, for instance, the Supreme Court said:

“To give effect to the instrument of December 11, 1953, as plaintiff’s counsel would have us do, would do violence to our codal provisions which demand a promise to sell on one hand and a reciprocal consent to buy on the other between the parties, so as to constitute a meeting of the minds on the thing, the price and terms. These legal requirements are mandatory before either party may exercise the right to specific performance.”

In Lake v. Le Jeune, 226 La. 48, 74 So.2d 899, 901, where plaintiffs sought to enforce specific performance of an alleged agreement to sell immovable property contained in a lease contract, the following language was used:

“But whether the parties intended that the selection was to be made by the heirs of the lessor or by the lessees or by them j ointly it must be concluded that the instant option was indefinite as to price and that there was no compliance with the requirement of LSA-Civil Code Article 2464. Where the price of a sale is to be determined and fixed in the future by experts to be named by the parties, as here, any one of the latter has the power to refuse to appoint; and the result of the arrangement is an uncertainty of price and a consequent nullification of the contract. See Louis Werner Sawmill Company v. O’Shee, 111 La. 817, 35 So. 919.”

And, in Tri-State Transit Co. of Louisiana v. Sunshine Bus Lines, 181 La. 779, 160 So. 411, 412, the court said:

“This contract, in our opinion, is not one which this court can undertake to enforce by injunction. It contemplates the performance of obligations extending over an indefinite period of time, and the details and precise manner in which the business is to be handled are so vague and indefinite that it would be impossible to enforce specific performance of these obligations. For instance, we could not compel the plaintiffs to attend to defendant’s business in the handling of its tickets and depot facilities because the contract does not specifically set out how it is to be done.
“Under the circumstances, it appears to us that the plaintiffs are not entitled to specific performance of the contract.”

Also, in Brown v. United Motor Car Co., 11 La.App. 84, 120 So. 264, 266, the Court of Appeal, Orleans, held that the district court was correct in rejecting defendant’s demand for specific performance, of a contract which it found to be indefinite, using the following language:

“As the defendant in its answer and in its testimony does not state the type of car which was to be purchased, the price thereof, or the time of delivery, this court could hardly order specific performance of so indefinite a contract.”

In the instant case it is apparent from the pleadings, from the documents which were introduced in evidence, and from the parol evidence which plaintiffs sought to introduce to explain those documents, that there was never a mutual consent or understanding between plaintiffs and defendant as to the size or location of the land which was to be conveyed, whether defendant was to convey an undivided interest in and to the whole or a portion of said property, or whether each of said plaintiffs was to acquire title to a separate tract. The principal document upon which plaintiffs rely, being the one signed by Antoine Brunet on September 24, 1953, contains no provision at all as to the price which was to be paid, and the parol evidence introduced establishes that there had been no specific agreement along that line. Also, there was no agreement between the parties as to terms under which the transaction was to be completed. And, finally, the document signed by Antoine Brunet concludes with the words, “after that I will have title to same,” which indicates that Antoine Brunet contemplated that after the transaction referred to in that document, whatever it might be, had been completed he would then own the property therein described. This statement, of course, appears to be inconsistent with his prior commitment “to sell,” but it further demonstrates that there was never a clear understanding among the parties as to what this document was to accomplish. We conclude, therefore, as did the trial judge, that there did not exist a reciprocal consent of both parties as to the thing, the price and the terms, as required by LSA-C.C. Art. 2462, and consequently plaintiffs are not entitled to judgment ordering specific performance of the alleged contract.

In view of that conclusion it is not necessary to determine whether the “counter letter” and the act of sale were executed simultaneously, whether parol evidence is admissible to show the connection between those two documents and the consideration paid or received for either of them, whether defendant has discharged any obligation which he may have owed to plaintiffs, or any of the other issues presented.

For the reasons assigned the judgment of the district court is affirmed.

TATE, Judge

(concurring in part, dissenting in part).

I concur with my esteemed brethren of the majority that the plaintiffs are not entitled to reconveyance of a lot with the specific frontage of 56.S feet, which is not the thing which the defendant was obligated to reconvey to them under the terms of the'counter letter.

However, I must respectfully dissent from the failure to accord these plaintiffs the alternative relief demanded by them, namely that the defendant be ordered to reconvey to them in accordance with his counter letter their undivided interest sold by them to him simultaneously with the execution of the counter letter. This counter letter, in my opinion, can be construed to mean that the defendant should reconvey to the plaintiffs their undivided interest to be conveyed to him (i. e., the thing) in the specifically described property, for the same price in cash as that he was to pay them for it (i. e., the price), upon the conclusion of the complicated proceedings following which defendant would acquire title from the various other co-owners, including absentees and minors (i. e., the time or terms.)

Further, it should be so construed, in> accordance with the intent of the parties-(LSA-C.C. Arts. 1945, 1950); and, where a meaningful construction is open to the court, the agreement should not be construed as did the majority so that the agreement is meaningless (LSA-C.C. Art. 1951).

It is also, in my humble opinion, unconscionable to permit the defendant brother to evade his obligations under the counter letter when, in return for his signature thereto agreeing to reconvey to his sisters their share in the tract in question, he received his sisters’ consent to his purchase of the property at private sale at a price they thought to be far lower than it would have brought at public sale.

Not only is the evidence to this effect uncontradicted, but the defendant himself admitted this to be the fact; see his following testimony:

AtTr. 12:

“Q. But did you promise to sell them that if they would sign the sale?
“A. Yes, I promised that.”

At Tr. 20:

“Q. Didn’t you tell your three sisters, ‘If you all will sign this sale, I will sign an agreement to transfer you a share or part of land’?
“A. I had signed the agreement first, and then they had signed the paper.”

The witnesses to the counter letter who also witnessed the signature of the sisters to the private sale by which the defendant acquired their interest in the land testified that both transactions were completed at the same time.

The counter letter .was drawn up by a persbn unskilled in the law, and it provides as follows:

“To Whom It May Concern:
u
“That I, Antoine Brunet do hereby oblige myself, heirs and assign, to sell to the following sisters,
“Mrs. Gertie Brunet Collins;
“Mrs. Suson Brunet LeBlanc;
' “Mrs. Isabelle Brunet Roddy:
"their- individual share or part that they have or own as heirs in property that I have or will acquire from the Estate of Armand Brunet, that they have .elect or choose to take their share' in land instead of cash* which said property being situated on the left descending bank of Bayou La-fourche, at abo.ut Forty Six miles from the City of Thibodeaux, measuring one arpent front by depth there to belonging and being bounded above by land of Armand Brunet, and below by land of Louis Guidry *, after that I will have title to same.” (Italics and aster-risks mine.)

Although obviously not skillfully drawn, as above stated I think that this counter letter adequately describes the “thing”, the “price”, and “terms” within the meaning of LSA-C.C. Art. 2462.

The agreement clearly shows in my opinion that Antoine Brunet agreed to sell to his sisters “their individual share or part that they have or own as heirs” (i. e., the thing)';- meaning their proportionate interest .therein owned at time of execution of the counter letter, which was before the sale thereof by the sisters to the defendant, in thé property described between the two asterisks in the above-quoted agreement. The statement that “they elect or choose to take their fehare in land instead of cash” to me has the obvious meaning that they would restore to their brother Antoine in cash their pro rata share of the purchase price “paid” by him (i. e., the price), in return for his reconveyance to them of their original proportionate share of the land described, after the conclusion (i. e., the time of payment in cash, or term) of the complicated execution of this sale by approximately eighteen parties including several absentees and minors.

The majority finds that the final clause of the agreement — “after that I will have title to same” — amounts to an inconsistent and meaningless declaration that Antoine Brunet would then own the property after he sold to the sisters whatever he agreed by the counter letter to sell them. I think contrariwise, that the clause is plainly meant to describe the date following which this obligation to reconvey the property to his sisters would arise, namely after final vesting of the title to the property in himself by acquiring all the outstanding interests of the eighteen co-heirs, including assorted minors and absentees.

And if the instrument be considered ambiguous in these respects, the uncontra-dicted parol evidence explains that such was the intention and effect of the instrument. See also LSA-C.C. Art. 1957: “In a doubtful case the agreement is interpreted against him [i. e., the defendant] who has contracted the obligation.”

The defendant, Antoine Brunet, does not himself contradict this testimony, but confirms it.

He himself gives two reasons as self-justification for his refusal to reconvey to his sisters their share in the property per his agreement to do so:

(A) At Tr. 13 he states:

“Q. When your sisters asked you to transfer to them their share or part of land, what did you tell them?
“A. They didn’t ask me. They just came at home with a sheriff. They asked me if I was gonna talk with them. I told them no, if they were too dirty to come to see me, I wasn’t going to see them.”
(B) And at Tr. 17 he states:
“Q. And the only reason why you would not reconvey an interest in this land to your three sisters was that they waited too long. Is that correct?
“A. That’s right. They were supposed to come and have some paper made right then when I made the paper, and they didn’t do it.”

The former defense is of course legally meaningless. The facts show the latter defense to be completely without merit.

The sisters had signed the sale to their brother in September, 1953, although they received none of the proceeds at that time. The proceeds from this sale and that of other succession property were deposited to the account of an attorney for partition among the coheirs according to their respective greatly varying interests, after deduction of the succession and partition expenses.

The sisters, who recorded the present counter letter on February 27, 1954 after an altercation of one of them with their brother-defendant (who had offered to re-convey their share to them for a sum in advance of the computation by the attorney of the net value thereof), did not receive their share of the proceeds until after March 1st, 1954. The uncontradicted evidence reveals that immediately thereafter on March 3, 1954, the sisters through their attorney demanded his compliance with his agreement per the counter letter to recon-vey to them their share of the property he had purchased from them and the other heirs.

It is not tenable for the defendant, who had not paid his sisters until March 1, 1954 for their interest in the property he purchased, to complain that they had not prior thereto offered to re-purchase their own share thereof. As he himself stated, “What they wanted was my money to buy my land. They didn’t pay it before — and you wanna know why? — just because they didn’t have no money.” (Tr. 15) Of course, the money withheld from them until March 1st and needed by them to secure reconveyance of their interest in the property, was not defendant’s as he there claimed, but their own!

For the above assigned reasons, therefore, it is my strong feeling that the plaintiff-sisters are entitled to have reconveyed to them their undivided interest in the property sold by them to their brother expressly and only upon his specific and admitted agreement that he would reconvey sáme to them after final execution of the complicated transaction involving the many other co-heirs. To permit him to receive the benefit of their voluntary execution of the private sale to him, without complying with the obligation they exacted from him in return for their releasing their own right to have the property sold at public auction for the highest price is, to me, the equivalent of putting the stamp of judicial approval upon apparent fraud and chicanery. The counter letter, which can be construed to have the meaning the parties intended (according even to the admission of the defendant), should not be interpreted so as to be meaningless; it should, instead be enforced according to the agreement and intent of the parties.

For these reasons, I respectfully dissent in part from the views of my esteemed brethren. 
      
      . The property was bought by the defendant for .$4,000 by deed recorded on February 5, 1954 (and dated December 1, 1958, although the attached documents indicate that the various parties signed at various dates before and thereafter, including for instance minor’s judicial authorizations to sell their share dated as late as January 14, 1954.) On March 17, 1954, a little over a month later, it was mortgaged to the State Bank and Trust Company of Golden Meadow for $11,500, almost three times the purchase price. (Article 8 of plaintiff’s petition, admitted by Article 8 of defendant’s answer.)
     
      
      . Antoine Brunet did not pay the plaintiffs at the time they executed the sale to him in September, or any other heir for their interest in the land at the times his various co-heirs signed the sale to him extending over several months. He deposited the purchase price with the attorney handling the partition at the conclusion of the sale, for such attorney (after deducting the pro rata expenses) to send to the co-heirs their share of the purchase price, along with their share of the purchase price of other tracts of the succession. This latter was not done until after March 1, 1954, several months after the sisters executed the sale to their brother. See P-4, P-5.
     
      
      . See in agreement: “after that I will have title to same.”
     
      
      . The testimony in the record, including the record of a previous partition suit, reveals that over three generations four tracts of land had been acquired to which the various parties to the partition suit were heirs. Due to multiple marriages, and the variety of acquisitions thereof as separate or community property, the interests of the respective parties (which included several absentees and minors) varied widely, and also differed as between the tracts. Originally commenced as a partition suit, eventually three brothers purchased at private sale the tracts involved; the present being the only one which the present plaintiffs felt to have been sold at an inadequate price. The agreement of the heirs was to collect the proceeds, deduct the expenses of partition and sale, and then to divide the proceeds according to the proportionate interest of the parties. The partition proceedings were commenced on May 4, 1953, see P-5; the checks for the various heirs distributing their share of the proceeds (less deduction of the expenses) were dated March 1, 1954 (see P-5) and mailed to the heirs about the same time along with a 7-page tableau of distribution (see P-4).
     
      
      . Tlie agreement thus reads: “ * * * I, Antoine Brunet do hereby oblige myself, heirs and assign, to sell to * * * [the plaintiffs their present proportionate interest in the described property that I have or will acquire from the Estate of Armand Brunet, for the cash price paid to them], after that I will have title to same [i. e., to the entire tract described immediately preceding ‘after’].” The common ungrammatical use of “that” does not alter the effect of this clause as modifying the preceding part of the sentence and the principal clause (“I oblige myself to sell”) thereof. To read it as the majority does, as if this last clause were set off by a semi-colon or period (that is, assuming the equally common grammatical misuse of a comma for a period or semi-colon), has the defect of rendering the clause and the entire agreement meaningless. See Article 1951, [LSA-]Civil Code: “When a clause is susceptible of two interpretations, it must be understood in that in which may have some effect, rather than in a sense which would render it nugatory.”
     
      
      . When payment was accomplished through the attorney by mutual consent.
     
      
      . Although this is described in the petition as undivided Himth interest in said tract (which was the average share of the purchase price of the two lots included therein), actually the ono-arpent tract purchased by defendant was composed of two one-half arpent tracts, described as Tracts “C” and “D”, acquired at different times; and in which, due to the complicated family relationships and the difference in marital status at the time their ancestors acquired same, their interests therein differed, being a t-üesth interest each in Tract C and a %2th interest each in Tract D. Of course they are entitled to have re-conveyed their fractional interest in each tract, rather than an undivided average interest in the combined tracts.
     