Vance v. Tourne , 13 La. 225 ( 1839 )

Eustis, J.,

delivered the opinion of the court.

The petitioner alleges, that on the 24lh of June, 1834, he purchased from the defendants four hundred shares of the Mechanics’ and Traders’ Bank stock; that he has always been ready to pay the price, and has offered to do so, but that the defendants refused to comply with their contract, as the stock was rising in the market, and to deliver said shares of stock, although the plaintiff has continually insisted on the delivery of the same ; that the stock was afterwards sold by the defendants, at a sum exceeding by twenty-eight hundred dollars the price agreed to be paid by him, which amount is said to have been lost to the plaintiff, by the non-compliance with their contract on the part of the defendants; for this amount suit is brought.

The defendants pleaded the general issue; there was judgment for them, and the plaintiff has appealed.

The defendants on the 24th of June, 1834, sold to John K. Smith, four hundred shares of stock as charged in the petition. On the fourth of February, 183ñ, they sold the stock to Beers, St. John & Co. at a large profit above the price to be given for the stock at the first sale.

Smith, who was a broker, says in his examination, that he purchased the stock on account of plaintiff, and disclosed his principal to the defendants immediately after the sale. On the day of the sale, he thinks, he went with one of the defendants to the bank, and the president of the bank refused to permit the transfer to be made, as the stock was pledged, and he believes he said to the defendant that the delay occasioned by the bank refusing to make the transfer would be a matter of no consequence. He afterwards spoke to the defendants, but does not recollect the time; thinks it was during the summer; stated to them that plaintiff was urging him to have the transfer made. He recollects having written a note, which was’ delivered to the defendants, about the transfer, but does not recollect at what time; says it was not so long as twelve months after. He has frequently told the defendants that the plaintiff held the defendants responsible. Plaintiff has constantly urged his claim to the stock.

In commutative contracts, it is the duty of the party claiming damages for non-performance, to show that he offered to perform his part, at the time implied in the contract, and that lie has put the adverse party in default. This is a pre-re-quisite to the recovery of dama- The damages at the time of the default or breach of contract, are the only damages that can be reco-Tered.

Assuming all these facts to be true, we think the plaintiff cannot recover. It was his duty to have put the defendants in default. In commutative contracts, this is a “ pre-requi-site to the recovery of damages.” He ought, at the time implied in the contract, to have offered to perform that which on his part was to be performed. Louisiana Code, articles 1906, 1907, 1908.

On a contract like this, the damages at the time of the default, or the breach of the contract, are the only damages which the plaintiff can recover. 3d Wheaton, 200.

We have before us memoranda of the value of the stock of this bank for several months after this transaction, and admitting that the defendants were put in default, as the time of the default which ought to have been fixed is entirely uncertain, we cannot determine that the plaintiff suffered any damage which did not result from his own neglect, in not taking proper measures at a proper time, for the enforcement of his contract.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with cosls.