(dissenting).
“All things not forbidden by law, may legally become the subject of or the motive for contracts. * * *” Giv. Code, art. 1764.
“Nous avons a examiner ici quelles choses peuvent etre l’objet due contrat de vente, —A cet egard, eomme lorsqu’il s’agit de la capacite des personnes, la regie general# c’est le droite, c’est la faculte; la prohibition n’est que l’esception. Ainsi toutes les choses dont la possession, dont 1’usages peut procurer a l’homme quelque avantage ou quelque agreement, peuvent etre vendues, hors celles que la loi a exeeptees.” Dalloz, Repertoire De Legislation, volume 43, Vente, page 147, section 4, Article 471.
From the above it appears that it is the policy of the civil law that contracts voluntarily entered into by persons sui juris shall not be lightly set aside, and that the annulment of an agreement because of some prohibited condition is rather the exception than the rule; that courts should not interfere except where no other course is open to them.
I am unable to see that the contract here under attack is uncertain in subject-matter in the sense contemplated by the provisions of the Code to which my associates refer.
The subject of the contract is ten lots of ground in Hanson place containing a specified number of square feet. The fact that the vendors were given the right to change the location of the ten lots did not make the subject-matter uncertain. It still remained ten lots of ground containing a specified number of square feet and located in that subdivision. If the contract had provided that the vendors, might, at their option, refuse to. deliver the property at all, then the condition would have been potestative because the carrying out of the contract would have depended upon the will of the obligors, but here there was no such option. The contract can be complied with in only one way; by delivering ten lots of ground containing a specified number of square feet. Even if the contract be interpreted as giving to the vendors the right, at their whim, to select and deliver any other ten lots in the subdivision, I see nothing prohibited in that.
I may agree with you that for $10 I will sell you my red dog, or that, if I s.ee fit, I may substitute any one of my white dogs to be selected by me. Can that contract be set aside for uncertainty in the subject-matter? Most assuredly not.
If ten persons authorize one of the ten to purchase 100 acres in some desirable neighborhood and to divide the 100 acres, into ten tracts of 10 acres each, under an agreement that they will draw lots for the respective tracts, why may not such a contract be entered into? I see nothing illegal or prohibited in that. Each has agreed that he will put up his share of the necessary money to purchase the tract, and just because it is not certain in advance that A will get any particular 10 acres, *445or that B will get any ■ particular other 10 acres, I cannot see why the contract should not be enforced and the person authorized to purchase the property could most assuredly enforce collection from A, B, C, and the others of the amount agreed to be paid. What is the difference between that situation and the one presented here? Stafford, Derbes & Roy were the owners of a certain tract of land. Dr. Salles agreed to buy a certain ten lots and he authorized Stafford, Derbes & Roy to substitute ten other lots to be selected by them. I cannot see anything wrong with that.
To state the whole case as I see it, the defendants, Stafford, Derbes & Roy, agreed in writing to sell to the plaintiff, Dr. Salles, the following described property: “Ten lots of ground, numbered 17 to 26, inclusive, in Square No. 2, Hanson Place, Jefferson Parish.” The price was $2,000, of which the plaintiff, Salles, paid cash $304, and for the balance he furnished three notes of $432 each, and one for $400, all payable in monthly installments of $36.
On the complete payment of all of said notes, the vendors, Stafford, Derbes & Roy, were to deliver to the purchaser, Salles, a complete notarial act of sale to said ten lots.
Stamped across the face of this agreement of sale were the following words:
“It is understood that Stafford, Derbes & Roy, Inc. may, at their discretion, cause a new map or re-survey to be made of the property herein sold and that such map or survey, if and when made, may show a change of position and/or location of property herein sold, provided, however, same number of square feet shown in same square or plot shall be retained.
“It is further understood and agreed that Stafford, Derbes & Roy, Inc. may at their discretion, make, apply for and obtain dedication of streets, roadways, highways,” etc.
In pursuance of this agreement, the plaintiff, Salles, paid on account the sum of $1,681.86. It is this sum which he now seeks to recover. There was judgment for plaintiff, and defendant has appealed.
As the district court passed upon only one ground of nullity, and as that is the only one discussed in the majority opinion, I shall confine myself to a consideration of that issue which is that the agreement of sale was and is a nullity for “uncertainty in the thing sold.”
I fail to perceive any force in this objection. The lots the defendants agreed to sell, and the plaintiff promised to buy, are specifically designated and described as “lots 17 to 26 inclusive, in Square 2, Hanson Place, Jefferson Parish.” These lots might have been more completely described for identification, but their location and dimension could have been ascertained by reference to the plat of Hanson place, since “that is certain which can be made certain.”
It is true that the rubber stamp across the agreement of sale gave the right to the vendors to “cause a new map or resurvey to be made of the property herein sold and that such map or survey, if and when made, may show a change of position and of location of property herein sold, provided, however, same number of square feet shown in same square or plot shall be retained.” But that was neither a facultative nor a potestative condition relative to the performance of the agreement, but was only a condition as to the execution of it. For it was stipulated in said agreement that on the final payment of the notes or of the price, Stafford, Derbes & Roy were to deliver to Salles a formal notarial deed to the ten lots designated in the agreement. There was no *446uncertainty or ambiguity in this agreement. Stafford, Derbes & Roy could not refuse to execute this promise unless they alleged and proved that they had “caused a new map or re-survey to be made of the property herein sold” and also, if made, that it “showed a change of position and of location of the property herein sold,” and, again, that “the same number of square feet shown in same square or plot shall be retained.” It ■ is evident, therefore, that the only effect of that ’*ubber stamp was to authorize the defendants to perform their contract' even if the new survey changed the position or location of ■the ten lots 17 to 27. This rubber stamp created no uncertainty in the agreement, on the contrary, confirmed its certainty and binding effect by authorizing the defendants to execute it by tendering ten lots differently located.
The cases quoted by the plaintiff of Chatham-Trenary Land Co. v. Swigart, 220 Mich. 137, 189 N. W. 1000 and Barnes v. Cowan, 147 Ga. 478, 94 S. E. 564, have no application, for the reason that in neither one of these cases was the property intended to be sold, identified, or susceptible of location.
I see no force in the argument that the vendors might substitute star-shaped or circular lots. Courts may always prohibit absurd interpretations of contracts. Lots of ground must have reasonable shapes and the expression “ten lots of ground” means ten lots of reasonable shape. This contract was entered into by persons sui juris, and with their eyes open. If the real estate in that locality had enhanced in value, I doubt not that we would not now be vexing our minds with this controversy.
I respectfully dissent.