Triangle Farms, Inc. v. Harvey

This is a petitory action coupled with an injunction. The defendant, in his answer, alleges that he is in possession of the property described in the petition without title thereto, but that he is holding under a written contract executed in his favor by the Sherburne Industries, Inc., with full written authority of the plaintiff, to sell to defendant the said land for $9,482.50, one-half of said price to be paid in ninety days from the date of the contract, and one-half thereof to be paid in five equal annual installments with 6 per cent. per annum interest thereon, to be represented by notes identified with the deed and mortgage reserved to secure their payment; that in compliance with his contractual obligations he paid the Sherburne Industries, Inc., $4,741.25 timely, but no deed to the property has been tendered him, and that the bringing of this suit is an active breach, and a judicial repudiation, of said contract.

The defendant expressly consents that the contract be rescinded, but, as plaintiff in reconvention, he prays for judgment against the plaintiff for $4,741, the one-half of the purchase price of the property paid by him to Sherburne Industries, Inc., with legal interest thereon from March 14, 1930, and for costs.

It is not necessary to state the incidental pleadings and rulings, for the reason that the only question presented for decision by this court is whether or not, under the established facts, the plaintiff in reconvention can recover from the Triangle Farms, Inc., the $4,741 he paid to the Sherburne Industries, Inc.

We have read the record carefully, and concur in the finding of the trial judge that the Sherburne Industries, Inc., had no written contract of agency from the plaintiff to sell the land involved in this suit. Some parol testimony was introduced to show a verbal authorization to do so, but parol testimony cannot be received to establish an agency to sell land. R.C.C. art. 2992; Mumford v. McKinney, 21 La. Ann. 547. This testimony was doubtless admitted to prove that the plaintiff consented to, participated in, ratified or profited by, the contract, but the trial judge held, and our appreciation of the testimony leads us to the same conclusion, that the evidence fails to establish, with reasonable certainty, a single fact upon which a judgment against the plaintiff can be based.

This is a regrettable case. The defendant, like numberless victims of misplaced confidence, was led to the shambles and sheared by courteous and affable promoters, who thought little and cared less for the consequences which might follow in the wake of their activities.

The learned trial judge has written a carefully prepared opinion in which he has correctly resolved the facts and rendered judgment thereon in favor of the plaintiff as prayed for in its petition, and rejecting the demand of the defendant, as plaintiff in reconvention, all at defendant's cost.

The judgment is correct, and it is therefore affirmed at appellant's cost.

O'NIELL, C.J., and ROGERS and ODOM, JJ., are of the opinion that the defendant's reconventional demand should be dismissed as in case of nonsuit.

On Rehearing.