The defendant, who is an auctioneer, adjudicated to the plaintiff at public auction a certain piece of real property in the City of New Orleans for the price and sum of $4420.00; plain-paying to the defendant 10 per cent, thereof, or say $442.00, to bind the sale.
Subsequently the plaintiff brought her suit to recover of the auctioneer this deposit, on the ground that as “there is a mortgage against said property, which operates as a cloud upon it and makes it impossible or unsafe for petitioner to accept title,” she is therefore not obligated to take it and is entitled to a return of the amount paid to bind the sale.
The answer admits ■ the contract of sale, but denies the existence of any cause for the rescission thereof.
There was judgment for the plaintiff as prayed for, and defendant appealed.
It' is contended by the defendant that the plaintiff has failed to *216allege and to prove that he, (defendant) had been put in default; and that such proceeding is indispensable to the right to rescind or dissolve the contract declared on, when its alleged breach is passive and not active.
The petition does not allege any putting in mora, nor is there any evidence whatsoever that the defendant was put in default pursuant to the provisions of the Code; and it is apparent that the alleged violation of the contract is passive. This putting in default is, under our law, an indispensable prerequisite to sustain an action of this kind. C. C. 1911, 1912, 1913; 6 N. S. 121; 8 R. 161; 1 La. 98; 7, La. 188; 13 La. 229; 9 R. 495; 19A, 130; 20 A. 291; 37 A. 491, 661; 38 A. 781; 42 A. 492.
“The object of the putting in default,” said the Supreme Court, in Moreau vs. Chawin, 8 R. 161, “is to secure the creditor his right to demand damages, or a dissolution of the contract, so that the debtor can no longer defeat this right, by executing or offering to' execute the agreement.”
By the failure Of the plaintiff to put the defendant in default in one of the three modes provided by Art. 1911 C. C., the latter’s right to “execute or to offer to execute the agreement” is not defeated, and until that right is defeated, the plaintiff can have no action for the rescission 'of the contract.
It is objected, however, that this defense cannot be urged, for-asmuch as it was not specially pleaded, but was suggested merely in argument.
The putting in default, under the textual provision of the Code, (Art. 1912j, “is a prerequisite to the recovery of damages and of profits and fruits, or to the rescission of the contract/’ It must precede the recovery of the recissioü, and in its absence a cause of action is not shown. The want of it need not be pleaded at all, it is not waived by an answer setting up other matters and can •be taken advantage of at any time. Erwin vs. Fenwick, 6 N. S. 235; Hodge vs. Moore, 3 R. 400; Hepp vs. Commangere, 10 R. *217524; Beck vs. Fleitas, 37 A. 494; Livingston vs. Scully, 38 A. 786.
1. A party suing to rescind a Contract for, its passive violation must, as a condition precedent, allege and prove a putting in default. 12. The want of default n'eed not be pleaded in defence, is not waived by an answer setting up other matters and can be taken advantage of at any time by the defendant. 3. Such is the general trend of our jurisprudence, which enforces the textual provisions of the Civil Code while the two cases cited as holding a contrary view absolutely ignore such provisions. 4. I consider it our duty to give no weight to those two case's, and to adhere to earlier jurisprudence, never distinctly Overruled, but apparently merely overlooked,The plaintiff, 'having failed to allege and prove this putting in default, he cannot recover; hence the judgment appealed from is ■error and must be reversed and plaintiff's suit dismissed as in case of non-suit.
It is therefore ordered, adjudged and decreed that the judgment appealed from be and the same is hereby avoided, reversed and set aside, and that plaintiff’s suit be dismissed as in case of non suit. The costs of both courts to be taxed against the plaintiff.