Philip Werlein, Ltd. v. Sallis , 1928 La. App. LEXIS 431 ( 1928 )

LECHE, J.

Concurring:

The contract in this case evidences a sale pure and simple. In a sale the vendor transfers the ownership to the purchaser. C. C. 2439. Ownership imipliés the right to use, to enjoy and to dispose of one’s property in the most unlimited manner. C. C. 491. It therefore follows as a necessary corollary that one cannot sell or transfer the ownership of a thing and thereafter continue to exercise dominion over it, for that is inconsistent with a contract of sale, in which the purchaser. acquires the right to use, to enjoy and to dispose of in the most unlimited manner. To acquire the possession of a thing in order to use it and enjoy it, without the right to dispose of it in the most unlimited manner, is in the nature of a contract of a lease, or a contract of usufruct.

A hybrid contract partaking both of the nature of a sale and of a lease, in which the transferrer can hold the transferee liable for the price of the thing and at the same time retain the ownership of the thing in himself as' security for the price, is impossible in this State. The legislature, by Act 62, p. 102, of the acts of the Extra Session of 1877, so recognized, and it provided that such a contract should be considered as a sale pure and simple. See Forsman vs. Maee, 111 La. 28, 35 So. 372; State ex rel Bulkley vs. Whited & Wheless, 104 La. 125, 28 So. 922. See also Barber Asphalt Paving Co. vs. St. Louis Cypress Co., 121 La. 152, 46 So. 193.

Whatever stipulations there may be in the contract in this case, which restrict the right of defendant in the use, enjoyment and right to dispose of the thing, a Wurlitzer instrument, should not therefore be considered as converting the contract into one of lease, but should be ignored and considered as not written. If plaintiff had attempted to enforce any such stipulation, a different case would be presented, but it has only exercised its right as a vendor, and in so doing, treats as it may lawfully do, the contract as one of sale.

I concur in the decree.