Eanes v. McKnight
Also decided on this docket: La., October 21, 1971 253 So. 2d 220
Eanes v. McKnight, 265 So. 2d 220 (La. 1972).
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Opinion text
BARHAM, Justice (dissenting). I must dissent from the holding of the majority for I find error in its conclusion that the nullity of the agreement to buy and sell was waived by the McKnights. The defect in that agreement urged by the McKnights was the failure of Mrs. Fortenberry to sign as co-owner since she and her husband were judicially separated and the marital community dissolved. The majority has adopted the conclusion of the Court of Appeal recognizing that while her signature was required, the judicial admission of the McKnights that the agreement to buy and sell was duly made and accepted precludes the raising of this objection. It was also noted that Mrs. Fortenberry did sign the act of sale. Although the Fortenberrys in brief and in argument before this court pointed out that the act of sale was signed by Mrs. Fortenberry, that document is not in the record and cannot be considered. Further, in giving the factual circumstances involved in this suit the majority recognized that the act of sale was never executed. The excess stipulation which judicially admitted that the agreement to buy and sell was made and accepted, referred to by the Court of Appeal and the majority, is the pre-trial orders. On the assumption that such orders constitute judicial admissions, scrutiny of the entire pre-trial orders, reveals no such admission. In the pretrial order of the Fortenberry-McKnight suit the “Established Facts” state as the first fact that both owners, Mr. and Mrs. Fortenberry, listed the property, and as the second fact that Mr. and Mrs. McKnight signed the offer to purchase, “which offer was accepted”. No mention is made of who accepted. Then referring to the heading “Exhibits”, there is a notation which reads: “b) a purchase agreement between Luther S. Fortenberry and the 'McKnights”. (Emphasis here and elsewhere supplied.) Any inference that can be made from the “Established Facts” listing that both Fortenberrys accepted the agreement to purchase and sell is certainly refuted by the description of exhibits. There was no' legal acceptance of the defendants’ offer to purchase, and there is no basis for recovery from them for failure to purchase. In the Eanes-McKnight suit the pre-trial order is even weaker as support for a judicial admission. The “Established Facts” state that “All parties admit the execution of the listing agreement and purchase agreement according to the terms and conditions set forth therein”. It is apparent *941 from the face of the agreement to purchase that Mrs. Fortenberry did not sign. The .agent never negotiated a legal agreement for sale of the property, and therefore cannot recover her agent’s fee. For these reasons I must respectfully dis.sent.