delivered the opinion of the court.
The facts of this case are stated at length in the report of the decision of this court, on a former appeal.
The plaintiff and defendant entered into a written agreement, which has all the essential requisites of a sale. The plaintiff binds himself therein to pay the defendant the sum *253of one hundred and thirty thousand dollars, for a plantador) and slaves, in the following manner: four thousand five hundred dollars cash in hand, paid, the receipt of which is acknowledged in the deed; twenty-five thousand dollars payable in gold or silver, on the 1st of January next following, and the balance in endorsed notes, to be delivered on the same day. On that day, also, possession is to be given, and a title in fee simple is to be made by the defendant; and the plaintiff further stipulates, that if he does not comply with his agreements and covenants, on the said 1st day of January, he forfeits the sum of four thousand five hundred dollars, and the defendant may convert it to his own use, to indemnify him for the chances of making a better sale of his property.
The plaintiff did not comply with his agreements and covenants at the time appointed, and the defendant, considering the contract avoided as a sale, or a promise to sell, by the happening of the resolutory condition attached to it, retains the sum which the plaintiff agreed to forfeit, if he permitted that condition to happen.
The plaintiff sues to recover back that sum, on the ground that on the day appointed for the delivery of the plantation a.nd slaves to him, the property was encumbered by several special mortgages, and particularly by one in favor of the Union Bank, to secure a large number of shares of the stock of that institution, which mortgage could not be raised, so as to enable the defendant to give him a title in fee simple on that day.
This is not an action for the rescission of the contract: the plaintiff takes for granted, that the contract no longer exists, and our first inquiry must be how it has been dissolved, for as long as it endures, it is the law of the parties.
It is clear to us, that the sum paid by the plaintiff cannot be considered as earnest money; it was not so characterized in the deed, and was simply paid as a part of the purchase money. We cannot now presume the existence of stipulations which the parties did not expressly make, and we are of opinion that the vendor could not evade the specific perform-*254aneé of his part of the contract, by returning to the purchaser double the sum he had received, or in any other manner. That contract was absolute, with the single exception, that if the plaintiff failed to execute it, it could not be enforced against him, and the partial payment which he had was to be the measure of damages for his nonperformance. But even in that case, the contract was not dissolved of right, by the happening of the condition. When the resolutory condition is an event depending on the will of either party, the dissolution of the contract must be sued for cases> when it embraces immoveable property, and the party in default, may, according to circumstances, have a *, f . ’ ?’ , ,. . further time allowed for the performance of the condition. Louisiana Code, article 2042. Here the fact of the performance or non-performance of the plaintiff, depended exclusively upon his own will, and the contract exists until it is dissolved by a judgment.
When tiorfTn a°con-on°the Avía"* either party, the dissolved of peningy ofehthe condition, but its dissolution must be sued for it embraces'"^-moveabie pro- Good faith in a contract is ai-ways presumed ; and the ^ court seifbonndto believe the con-understood each the vendor dis-in°reiation to the thing sold,when wise shown.Had an action for a rescission been instituted, it could not have been maintained. The facts proved at the last trial, by the witness Coyle, that the defendant fully explained to the plaintiff the will of Julien Poydras, ‘ and informed him that mortgages existed upon the property, stand uncontra-dicted and unopposed, and are conclusive against the plaintiff. He had been informed before the sale, of the danger of the eviction, and he could not suspend the payment of the pn'ce 0I1 (hat account. Louisiana Code, 2535. It is true L * that the witness does not remember that the defendant mentioned to the plaintiff the exact amount of the mortgages, nor £]068 ¡t appear in evidence that the mortgage given to secure the stock of the Union Bank was named particularly; but good faith is always presumed, and we are bound to be-^eve ^Iat ^ie defendant told the plaintiff the whole truth on (he subject. If it was otherwise, it is the plaintiff’s fault that it does not so appear before us. The witness was not cross-examined, in inference to these particular facts, and we; must take his evidence without any restriction or limitation.
It is, therefore, ordered, adjudged and decreed, that the *255judgment of the District Court be affirmed, with all the costs in both courts, except that of the first appeal.
Mustis, J.,delivered a separate opinion.
My construction of the contract is this: I consider that Noe, if he should determine not to take the plantation of Taylor, was to give Taylor four thousand five hundred dollars, for having the refusal of it from the 21st of July to the 1st of January following, during which time Taylor could not sell, and Noe would have the chances of offering his bargain for sale. Taylor would not have bound himself without compensation, and it is expressly stated in the contract, that this sum of four thousand five hundred dollars was to indemnify him for the chances of making a better sale of his property. I, therefore, infer, that this was the consideration of the contract, so far as it relates to that sum. The property might rise, Taylor might have a better offer, and he would not deprive himself of the chances of a better sale, unless there was a certain sum paid as an indemnity for losing them.
My opinion is, that Noe, in a breach of the contract on his part, was bound for nothing more than the four thousand five hundred dollars ; that this is the limit of his responsibility.
■ After this agreement, we hear nothing more of the plaintiff : his residence, it appears, was in Mississippi; on the day fixed for the completion of the sale, Noe did not make his appearance. A gentleman of the bar presented himself on his behalf, but no authority is shown on his part to conclude the contract, or to bind his principal in any manner. I am satisfied from the testimony of Coyle, that Noe knew perfectly well that the estate was encumbered with mortgages, and that his disinclination to complete the purchase, originated from causes entirely independent of their existence. If Noe wanted to complete the purchase, or to comply with his contract, he ought to have been present himself, or by an attorney in fact, specially authorized, and complied, or offered to, comply with with the requisites of articles 1906 and 1907 of the Code. From his conduct, I infer his understanding of *256the contract, was, that he was not bound to comply with it, having left in the hands of Taylor the sum of four thousand five hundred dollars as an indemnity for losing the chances of a sale.
My opinion on this subject is confirmed by the well known fact, of the existence in this country in 1836, of that spirit of speculation which predominated in every contract made under its influence, changing not only its forms, but producing consequences until then unforeseen. Such being my convictions of the intention of the parties, and such the legal intendment of the contract, I think the judgment of the court below ought to be affirmed with costs.