On Application for Rehearing
LAND, J.After a careful review of the record in this case and consideration of the application for a rehearing and the argument of the learned counsel, we see no good reason to change our opinion and decree.
The affidavits filed in support of the application cannot be considered as evidence for the purposes of a hearing in this court, and after the lapse of more than four years it is rather late to request the remanding of the case for additional evidence.
It may be conceded that the Babb-Le Dan-ois contract was not expressly included in the transfer to the plaintiff company. It was, however, intended to be transferred, and all the parties in interest have recognized the title of the company. The defendant’s answer virtually admits that plaintiff company is the transferee of Le Danois’ right and obligations under the contract. The answer avers that “neither plaintiff or its1 transferror” obligated themselves to bore on defendant’s land, or did bore thereon or on the other lands described in the contract, but others in their behalf drilled on the land of Begnaud in May 1901 and found a stratum of solid rock salt 400 feet thick at a depth of only 200 feet. The answer charges that it was the duty of “plaintiff or its transferror” to notify defendant of the acceptance of the option vested in them, and to perfect the same by purchase of the property, which they failed to do within 90 days from the discovery of the salt deposits. On the trial below defendant objected to evidence tending to1 prove transfers of the contract on the ground-of “irrelevancy,” and because the “defendant was in no wise concerned.” Considering the-answer, we think that this was the proper view.
It is next contended that the contract was-null because without consideration and dependent on a potestative condition. We think that a perfect answer to this contention is that, conceding that the condition was potestative in the beginning, it was actually performed by the grantee and his assigns at a great expense, and with the active assistance of the defendant.
A condition which has been fulfilled ceases to be potestative. Murray v. Barnhart, 117 La. 1032, 42 South. 489.
The ground that the discovery of salt was the finding of a “commercial substance” within the purview of the contract has been fully discussed in the original opinion. All the surrounding facts and circumstances and the conduct of the parties show that salt was not within the contemplation of the contracting parties.
Rehearing refused.