No. 17,508 Precedential Modified and affirmed. Processed

Manning v. Cohen

Louisiana Supreme Court · Filed November 15, 1909 · 50 So. 778

Cited by

Giron v. Housing Auth. of City of Opelousas 393 So. 2d 1267 La. 1981
Arquembourg v. Bourque 243 So. 2d 92 La. Ct. App. 1st Cir. 1970
Quarles v. Lewis 98 So. 2d 301 La. Ct. App. 1st Cir. 1957
Price v. General Motors Acceptance Corporation 95 So. 2d 834 La. Ct. App. 2d Cir. 1957
Quarles v. Lewis 67 So. 2d 106 La. Ct. App. 1st Cir. 1953
Thompson v. Varino 45 So. 2d 634 La. 1950
Davis v. Oaklawn, Inc. 31 So. 2d 837 La. 1947
Deboue v. Gillman 2 So. 2d 690 La. Ct. App. 1st Cir. 1941
Bonfield v. Tichenor 189 So. 635 La. Ct. App. 1st Cir. 1939
Price v. Town of Ruston 148 So. 512 La. Ct. App. 1st Cir. 1933
Manning v. Cohen 54 So. 700 La. 1911

Authorities cited

Identified automatically; this list may not be exhaustive.

H. L. Fox & Co. v. Jones 39 La. Ann. 929
Roos v. Goldman 36 La. Ann. 132

Opinion text

PROVOSTX, J. This suit is for specific performance of a contract of sale of real estate, and for damages alleged to have been suffered from defendant’s failure to perform the contract. The damages consist of the rents of the property and of attorney’s fees for bringing this suit; the rents being those from the 31st of July, the day on which the defendant was put in default by the formal tender of a deed for him to sign accompanied by an offer of payment, to the date of delivery of possession. . Defendant answers that he has been willing and ready all along to perform' the contract. We think the evidence shows differently. Attorney’s fees cannot be recovered in a" *871 case of this kind. Fox v. Jones, 39 La. Ann. 929 , 3 South. 95 ; Ross v. Goldman, 36 La. Ann. 132 . But we do not agree with our learned Brother below that the vendee must elect between suing for specific performance and suing for damages; and that, if he chooses the former, he cannot claim damages. Articles 1926, 2486, Rev. Civ. Code, are express to the contrary. 24 Laurent, Vente, No. 180, p. 178, says that the vendee is entitled to the damages “in all cases; that is to say, whether he sues for the resolution of the contract or for specific performance.” And indeed, it stands to reason that, as announced by article 1930, a party who violates his contract is liable for the damages which his default has caused the other party. In the instant case, if plaintiff were to be given nothing more than the property itself, after having been kept out of it for one year and lost the rents of one year; he would not be given the full measure of his rights under the contract; and defendant, on the other hand, would be profiting that much from his own default and wrong. Plaintiff is entitled to these rents, less, however, an amount equal to legal interest for the same period on the $200, which, with the $50 actually paid, was to constitute the cash payment. Not having deposited said amount, but retained and enjoyed it, plaintiff must pay interest on it. It is ordered, adjudged, and decreed that the judgment appealed from be amended by condemning defendant to pay plaintiff damages at the rate of $113 per month from July 31, 1908, until the date of the delivery of the property in controversy, less 5 per cent, per annum interest from July 31, 1908 on $200, the said $200 being that part of the purchase price of said property which was to have been paid cash, and was not paid, until the payment of said $200, and that said judgment be in all other respects affirmed, defendant to pay all costs.