Harvey v. Nolan , 5 Pelt. 70 ( 1921 )

opimos,

By his

Honor John at. Paul.

Plaintiff aliagas that on Horember 24th 1916 defendants ^§Ta him a ninety days aptlan on six certain lota of ground for $1900; that within said period he notified than of his intention#te avail bins aIf thereof and demanded of then a transfer; that defendants refused to abide by their obligation, but on the contrary sold the property to a third party for $2600, thus making a profit of $600 on his preparty; which profit plaintiff non claims sb damages.

Ilio defense set up in the answer is that said option was obtained by fraud; towit, that at the time thereof and prior thereto plaintiff had been employed by them as their agent to sell said property, and had actually than found a purchaser therefor, towit, the rery Bane party to whom they sola, and at the Tory same price for which they soldj and all of which he failed to disclose when he obtained said option. Defendants farther Bet up that the option was without consideration; and finally that it was an attempt by plaintiff to evade the provisions ef Aet 42 of 1908, relatire to real estate agents, with which plaintiff had net complied.

I.

'.Calcing those up in reverse order we will first dispose of the defense last made. Aot 42 of 190E requires real estate _ agents to furnish a certain bond; whioh plaintiff had not done. But whatever may or may not have been the case on other occasions, it is certain that on th&s one occasion at least plaintiff did his beat not to aot as real eBtate agent, and to that end merely exercised a privilege lawfully accorded tofc.ll, towit, that of purchasing an option, Aot 249 of 1910

In so doing he was obeying the law, not violating it. for it is not unlawful to do that which the lav/ allows, even when done for the express purpose of avoiding something whioh the latf <f-3 forbids. Reeves vs Harper, 4* An 516, 522;■Scottish Mortgage Co vs Ogdon, 49 AB 10,14.

II.

She option declares that It was given in consideration of |10, reooipt whoroof is acknowledged in the instrument itself; and It is testified and not seriously denied that plaintiff gave defendants a perfectly good oheok for that amount. Defendants howevsr did not collect the oheok, and have aot even attempted to do so. But the answer to thiB is 1» the maxim "Volant! non fit injuria," for the consideration agreed upon was certainly put within the power of the defendants!; and if they did not choose to grasp it, their voluntary inaction oasnot result to their own benefit and to the prejudice of plaintiffs

Ills

Tha defense that theeption was obtained by fraud is net horas out by the evidence. Plaintiff testifies that ha had had tha property fer sals for account of the defendants and had offered it to one Peyrefitte. to whom defendants afterwards sold it; that Peyrefitte had offered $600 for about one third of it (towit, 46 fast eut of 106 feet front on Q'Railly Street); that the offer was submitted to defendants but the latter refused it; that defendants wanted to sell the whole property and at once; and that it was not until December 6th 1916, or nearly two#weelce axter the option had been given, that Peyrefitte for the first time showed any inclination whatever to buy the whole property; and that on the same day he and Peyrefitte had agreed on a price and had closed a deal for $£600o

In all of which plaintiff is corroborated in substance and- in detail, by Peyrefitte; and there is not a line of evidence in the record, written oh oral, which contradicts this testimony in the slightest degree, or even suggests that it might be untrue.

3» auoh far the defensas aat up la the answer. Bat when the ease was on trial and the evidence helas take» a aew dafansa was developed, v/hioh though wholly untenablw in law, yet prevailed with the trial judge and formed the basis of his judgment; towit, that defendants when they gava the option did not know, or did not intend, that it should he a binding obligation, aooording to its true tenor, and merely thought or intended that it should serve as a formal constitution of agency.

But the physical ovidenoe in the record shows that this option was neither hastily nor thoughtlessly given. On the contrary it was the outcome and result of successive and different written propositions, all of which were submitted to a practicing attorney of more than 25 yaars experience in suoh matters, aoting for defendants, who made written suggestions of changas to bo nada and even assisted with his own hand in drafting the instrument as finally agreed upon and exeoutad.

But be all that as it may, the lav/ in this state, and the world over, is thoroughly well Battled, that one who voluntarily affixes his signature to a written instrument obligates himself aooording to the very tenor thereof; and^will not be permitted to say that he did not intend to obligate himself Taut meant to bind ¿himself a > only in some other way or oven not at all. DeSota Building Co vs Kohnstamm, Our No. 7267, and autheritios there cited; Bagneris vs Odde, Our No. 7471, and authorities there olted; also Boagui vs Fouchy, 26 An 694 and Advance Thresher Co vs Roger, 123 La 1067. Por signatures to an ohllgatlon are not mere ornaments, and parties will not he reliered therefrom simply because they did not know or did net intend what they signed. Boulet vs Sarpy, 30 An 494.

V.

But the $600 due plaintiff are subject to a credit of $260 reoelred by plaintiff as a deposit from Peyrefitte and dsduoted by hin from the purohase price; and also to a further oredit of $77.66 for the taxes of 1916 due by •plaintiff but paid by defendants. Hence the balance due plaintiff ly defendants is -)272o46, as stated in plaintiffs letter of Bobruary 1st 1917. And accordingly

The judgment uppealed from is therefore reversed, and it is now ordered that there be judgment in favor of plaintiff, Stanley A. Harvey, and against the defendants TJlysse Marlnoni, Jr. and Mrs. Olga liarinoni, v/lfe of William T. líolan, for the full sum of Two Hundred and Seventy-two u 45/100 Dollars (>272.45) and the costs of both courts.