Fellman v. Smith , 1921 La. App. LEXIS 91 ( 1921 )

CHAELES F. CLAIBOENE, JUDGE.

On Rehearing.

In our original opinion we maintained the exception-of no cause of action on the ground that notwithstanding the «lause in the contract

*«ubjoot to Homestead Loan *15,000.00*

yet

•there was nothing in the petition which averred that defendant failed in any my to comply with the conditions of the contract, or that she had made no endeavor to do so. The allegations of the entire petition fail to state this fact, and to our mindB, this is fatal to plaintiff's cause".

But upon the application'for a rehearing the plaintiff calls our attention to the fact that hd does not pitch his case altogether upon that clause of the contract, but also upon the. allegation that the defendant-» independently of said clause, had changed her mind, and with the consent of the vendor agreed to cancel the contract of sale. The allegations of his petition are:

"That the said Mrs. Isabel Smith thereupon expressed an unwillingness to comply with the tenas of said agreement x x and requested Mrs. Baldwin -to release her thereunder; and that the said Mrs. Baldwin x x released Mrs. Smith from her obligations undeie said contract to purchase the residence".

Without expressing any opinion as to the liability of the defendant if the above allegations are proven, and of the circumstances which brought about the cancellation of the contract, we are of the opinion that the plaintiff is entitled to have all the facts of his case submitted to the Court end his rights thereunder adjudicated.

October 31st, 1921.

It is therefore ordered that our previous decree herein be set aside, and that the judgment of the District Court maintaining the exceptions herein be avoided and set aside, and that this case be remanded for further proceedings according to law.

Judgnent reversed and case remanded.