*420DISSBBtlBO CPIIIO*.
St. Paul, J.I am unahle to agree with ay Colleggnea and with tha hlatrlot Juago.
They may ha right; hut I think that defendant was lag hy oaonotl’a lottar of August 1st (mot Intentionally, of oouroa, hut mamo tha laaa ariaoutly) Into tha hallof that a now laaaa would ho algned at tha s«M tima that ha paid, tha rant, that la, within tha £4 hours. Amt however may have haan tha taehnieal aarits of dafaadant'a original position. It waa at laaat not an mu. tmdaad, «hat appeared ta have haan eonoadod, waa aran mora than ha had aakod; ao that to him tha oontroTarsy aaaaad olosod.
XI.
Again, I think that no tandar hy dafamdant waa required. A tenter is naoasoary and useful only to atop lataroot and oeata, or ta antleleat< and prevent a auhaequent putting in tofanlt jjt aona iaaonvoniont But In order to dlaaolTa a laaaa or other oontraot far a paaalwe h«wh thereof, thara must ho an actual putting in daafult, mat a nara want af tandar or eran a long oomtlnued and deliberate fallara af perfumamos: unloaa a putting in default has haan waived, or would ha aaolaaa awtag to a paranptory rafuaal, or manifeat Inability to parfoxn.
She only putting In dofault in this oasa (almas thara waa ns peremptory rafuaal to pay^or rafuaal at all after tha latter af August lat)oould and should hare haan a demand made at tha dentella of thm defendant (the debtor) hy a parson than and there ready ta resolve tha payment. A demand h£ post was no demand at all. Lafayette Realty Vs. Puglia, 10 Orleans App. Rep. 105; Bennabel va Metairie Cypress Co., 120 La. 928.
*421Briede Babat, 181 La 181, has no spplloatlon hero. There tha plaintiff sat only «llagad ««loable demand without «wall, hut proved rapaatad and praaaing personal demands, rla, "oanataut dunning,” without resulta. And, aa aforaaald, no tandar of aay kind waa required of tha dafandant in thla oaaa; ao that whan er whara or how tha nonay for tha rant waa "oonalanad^la ef no oonaaquanoa whatarar.
III.
Moreover X an hy no naana aura that dafandant'a original position waa only ngi unxaaaonahla: It nay aran have haan atrlotlt oorraot In law,
Bor besides the provisions of tha old laaaa for a taolt renewal, that oontraet gave defendant an express "right to rasaw;" by which, of oouree, the partlea oontanplated althar tha waking of a new written lease, or at least a written extension of tha old one.
low It nay ha truo that defendant did not need any foxaal instrument, or written inatruaent at all, in order to retain possession of the premises; slnoe the law (sometíaos) oonalders that done which should hare teen done. Tet, none the less, defendant was entitled to just auoh an\ instrument, einoa tha old lease gave him a legal right to it; for a oontraet to axaoute ¿ oontraoti the terms of whioh are fixed, Is a ralld and binding agreement In this state, as elswhere. Kaplan vs Whitworth, 116 La 337.
And therefore when plaintiffs "failed, refused or neglected" to execute a written renewal of tha lease (whioh In the Tory nature of things should hare oreoeded the time fixed for payment of tha rent thereunder) they were themselves in no position, without a change of mind on their part, to demand iifMWittiitt'HtíHUÍt tHtftUU performance on the part of defendant, 1. e. to demand payment of the rent under that lease.
Tor a party to a contract who fails to perform (and is not xeady^even willing to perform) his ##### share of the agreement, is as yet in no position to damend perfromanoe by the other party. *422Ihls ia the general law; in thia State it ia even statutory. 9 Cyc 721 Verbo; Oontraota, viz, "When first act ia to Re ¿one by-plaintiff, " Rotea SI to 55; Golding vs Petit, 20 An 505; Brown vs Stubbs, 47 An 1480; C. C. 1913, 1914.
IV.
For my part I have not the 8hadow of a doubt that plaintiffs would have received their rent promptly and fully, had they but shown the least inclination to do that whioh reason and equity (to say nothing of atrtet law) pointed out to them aa the one proper thing to do; and the same letter of August 1st shows, to my mind, that they had been very plainly told ts=de'.
I therefore respectfully dissent.
New Orleans December 9th, 1919.
*423January 12th, 1920.*4240 Since tho filing of tho transcript of appeal in this case, tho plaintiff haa instituted an notion in the Diatriot Court against tho defendant In which ho claim* Judgment for One Hundred Dollar* for rent for the months of August, sept* ember, October and Hovomber last and for all such additional rente as may fall due from month to month pending theyjf pro* oeedings and that the lease far the remainder of the term be cancelled and annulled and that he be put in possession of the leased premises.
The defendant and appellant thereupon brought this-pe tit ion to the attention of this court, and, construing said petition as an abandonment of the original suit for possession and incompatible therewith, moved this oourt to remand this oase to the Dletrlot Court for the purpose of inquiring into the effect tdf that suit for rent upen this suit for possession.
He think It unnecessary to take euoh action, as the Supreme Court has already settled the question. In the oases of Dubois vs. Xiques 14 A. 427, Fox vs. Mc Kee 31 A. 6; and Doullut vs. Rush 142 La. 443 (451) tits Supreme Court said that there was no inconsistency in the demand for the dissolution of a lease and for rant during the oeoupanoy of the lessee up to the time he surrenders possession of the leased premises. In the case of Delmar vs. Alberstadt 10 Ct. App. 148 this court decided that a notice to vacate and a suit for poeeassion are not -waived by reeeipt, during the pendenoy of the suit, of rent past due.
The oase of Deslonde vs. O'Hern 39 A. 14 relied upon by appellant is not in oonfllot with these opinions. In that case t$a Court maintained an injunction against the execution of a writ of eviotlon for the reaeon that, after the judgment of aviation, the lessor as a compromise, had 'agreed not to exeoute this Judgment and to permit the lessee to remain on the premise? if he (the leasee) would pay ooste and the entire rent". The faots in this case are different. The lessor has *425has only sued for the rent aocrued and to aoorue during the actual occupancy of the premises by the lessee. Surely the leasee oannot occupy the premises free of rent, nor does the lai? make the lessor forfeit his right to the rent as a penalty for suing for eviction for non-payment of rent, nor lose his right under a suit for eviction as a penalty for suing for rent due for occupancy.
The motion to remand is therefore denied, and as the petition for a reheating has not convinced ue of an error in our original opinion, the rehearing also is denied.
January 12th. 1920