(dissenting).
Decision should turn upon the meaning and legal effect of the following provision of the contract: “It is further agreed that in the event the sale of the remainder of *145the Brookwater Plantation to Gilbert K. Alford and his assignees ‘is not consummated on or before noon on November 1, 1943, then and in that event the Natchi-toches Oil Mill shall have the right, at its option, to cancel and avoid this contract and agreement; or the said oil mill may, if it so desire extend this agreement for an additional six months without the payment of any consideration.’ ”
The sale of the remainder of the Brook-water Plantation to Alford and his assignees was not consummated by November 1, 1943. What then was the situation under the contract? I think it clear that on November 1st the oil mill had two choices: (1) to cancel and avoid the contract, or (2) to extend it for a period .of six months.
To extend the contract for an additional six months from November 1, 1943, the oil mill would have had to give timely, written notice to the insurance company. In Louisiana, agreements to buy and sell immovable property must be in writing, and any extension or modification of such agreements must likewise be in writing and may not be established by parol evidence. Louisiana Civil Code, Arts. 2275, 2276, 2462. Roe v. Maniscalco, 174 La. 526, 141 So. 49; Barchus v. Johnson, 151 La. 985, 92 So. 566; Oeschner v. Keller, 134 La. 1098, 64 So, 921; In re Industrial Homestead Ass’n, La.App., 198 So. 528.
In the court below the insurance company contended that since the oil mill did not give notice of an intention to cancel and avoid the contract on November 1, 1943, it was thereby automatically extended for six months.1 Now on appeal counsel for appellant make no such contention but say “It may be that a writing would have been necessary in order to extend the contract for the fixed period of six months * * * it is not necessary to decide the question.” in effect, they now say that in the absence of an express notice of avoidance the contract lived on for a reasonable time, and that tender of the deed nearly three months later on January 24, 1943, was within a reasonable time.
It is without dispute that the title to the lands did not pass to Alford until January 22, 1944, and that the deed was not tendered until January 24, 1944, nearly three months after the date fixed in the contract. By ignoring the significant and important date of November 1, 1943, in the contract, my brothers, in effect, read oiit of the contract the provisions “ * * * then in that event the Natchitoches Oil Mill shall have the right, at its option, to conceal and avoid this contract and agreement; or the said oil mill may, if it so desire extend this agreement for am additional six months without the payment of any consideration.” The majority opinion goes on to hold that, “On the pleadings the case is a very simple one of a contract clear, definite and precise in its terms, binding each of the parties to it, the one to sell, the other to buy, ‘within five days after Alford and his assignees have taken title to Brookwater from the insurance company’. No time limit was fixed for the taking of such title and the closing of the contract of purchase on the gin, five days thereafter. The law, therefore, fixed a reasonable time for doing so and bound defendant to take the property if the deed was tendered within such time.”
It becomes manifest that in adopting the “reasonable time” theory, the majority opinion has not only read out of the contract the November 1st date, but has also substituted in its stead a "reasonable time” in which plaintiff might present its deed. If a "reasonable time” may be supplied, what then was the necessity for the contract to provide for an additional six months from November 1, 1943, if the defendant wanted it?
The majority opinion declares that the contract is clear, definite and precise in its *146terms.2 If this be true, the Louisiana law, as pointed out above, is settled that parol evidence is not admissible to vary it. The trial court recognized this rule after it had erroneously admitted much evidence over the defendant’s objections. The majority opinion, however, considers much of the evidence in the discussion on the merits.
It is my view of the case that we have before us a simple executory contract to buy and sell, which was not completed and which could not have been completed because the insurance company had not made the sales to Alford by November 1, 1943. By the terms of the agreement the obligation to buy and the obligation to sell was to depend upon the sales to Alford within the time limit of November 1, 1943. When that day arrived, the oil mill could have kept the contract alive only by giving written notice of its election to extend the contract for an additional six months. Not having exercised its option to extend by giving such notice, the contract fell of its own weight and the oil mill was no longer obligated to buy and the insurance company was no longer obligated to sell the gin. Cf. Moresi v. Burleigh, 170 La. 270, 127 So. 624; Barchus v. Johnson, 151 La. 985, 92 So. 566; Standard Oil Co. of Louisiana v. Milholland, 167 La. 707, 120 So. 59; Elmer v. Hart, 121 La. 537, 46 So. 619.
To me this is the acid test which points out clear as crystal the fallacy of the majority opinion: If the shoe was on the other foot, and on January 24, 1944, the insurance company had elected not to sell the gin, could the oil mill have successfully demanded specific performance of the contract? Certainly not. The insurance company could have defended on the ground that the oil mill had not extended the contract for six months by timely, written notice as it had a right to do. It is my considered judgment and I am convinced that when the oil mill did nothing on November 1, 1943, it forfeited its right to force the insurance company to sell, and relieved the oil mill of its obligation to buy under the contract. After November 1, 1943, the insurance company could have sold the gin to whom it pleased and the oil mill would ■ have had no basis for complaint.
I think the trial court correctly refused to decree specific performance and that the judgment should be affirmed.
I respectfully dissent.
After the trial court had rendered its opinion, D.C., 64 F.Supp. 816, and .entered findings of fact and conclusions of law, the plaintiff requested a new trial and moved for amendment of the findings. Paragraph 4 of the motion requested a finding that, “When it did not exercise its right to cancel, it automatically exercised its desire and the contract, by its writing was extended. Its silence and inaction were a declaration that it stood on the extension, as it did not cancel.”
A finding of clearness and preciseness of the terms of the contract is necessary to avoid the rule that specific performance will not be decreed where a contract is ambiguous. 49 Am.Jur., Specific Performance, § 22, p. 34. Also compare Goudeau v. Daigle, 5 Cir., 124 F.2d 656, which points out that the remedy of specific performance is not favored in Louisiana and that the granting or denial of specific performance rests within the sound discretion of the trial court. I am not at all convinced that the case is a “very simple one of a contract clear, definite and precise in its terms.”