*47P. J. LEAMAN VS SILAS PUTNAM
NO. 8742
COURT OF APPEAL
PARISH OF ORLEANS
APPEAR PROM THE PIRST CITY COURT POR HEW ORIEAHS, SEC. "0," HOH. HY. JUDGE. THE CITY OP HEHSHAW.
DISSENTING OPINION OF
WILLIAMS A. BELL, JUDGEI respectfully dissent to the majority opinion rendered this day hy the Court in the above entitled matter, for the following reasons:
This is a suit hy a real estate agent for the recovery of hiB commissions alleged to he due him under a contract signed hy the defendant, the material parts of which, for purposes of this case, read as follows:
"I hereby offer and agree to purchase through you, P. J. Reaman, for the sum and price of $7,000.00, the following described property * * *
"If this offer is accepted, I will deposit with you immediately in cash 10 per cent, of the amount thereof on account of the purchase price, non interest hearing, this deposit not to he considered as earnest money, the parties hereby reserving the right to demand specific performance.
"Should I fail to comply with the terms or conditions of this offer after same is accepted, I obligate myself to pay on demand your commissions on this sale, and any attorneys fees and costs of court that you *48may incur in enforcing collection of your claim. This offer remainB binding and irrevocable until _.
(Purchaser's signature) (Sighed) 3. Putnam
Address _.
Hew Orleans, la., 4-11-1922.
”P. J. Leaman, agent.
"I accept the above offer, also terms and conditions, and agree to pay you for services rendered $210.00, same being earned and payable when agreement to purchase is signed’and offer is accepted.
(Signed) Fred Hesse."
TJpon the. above contract plaintiff sued defendant, who refused to comply with the conditions of offer to purchase and hence it is claimed that the $210.00 (3% of $7,000.00, the total purchase price) is due by the proposed purchaser unto the plaintiff herein. There is judgment in plaintiff's favor for the amount prayed for, with attorney's fees and interest.
I see no error in the judgment and believe it should be affirmed. A careful review of the evidence and of the pleadings dlsdoses the fact that the defendant, in the early business hours of the morning of April 11, 1922, signed the above offer to purchase and that shortly thereafter, not later than 11 o'clock of the same day, the offer to purchase was accepted without any qualifications whatsoever. The testimony of both plaintiff and defendant verier these facts, but it is contended as a matter of defense and alleged in defendant's answer that - the written offer was declined and after the declination the., original offer to purphase was withdrawn by defendant. . Further in his answer it is alleged as an admission that the offer which respondent had signed before same was declined end called' off by responden^ did provide, for the.payment of commissions as set forth in the. written contract, but that same was. not binding on respondent after said offer was declined’' and withdrawn. It *49la far that alleged.-In defendant1 a answer that said commissions would have been due had defendant's offer to purchase been accepted before same was subsequently withdrawn, but that defendant's offer to purohase having been declined and subsequently withdrawn, that the contract sued upon was hence set aside and absolutely,null and void. This defense is not borne out by the testimony, because of the facts Just noted, to the truth of which both litigants have testified.
In direct examination plaintiff swears that he presented the written offer to .purchase to the defendant early in the morning, that he signed same and that at 11 o'clock the vendor of the property accepted the said offer to puroJiaBe; that he, plaintiff, then phoned the.wife of the defendant stating that the transaction had been closed and that the owner of the property had accepted defendant's offer to purchase; that he subsequently called at defendant's residence, about same day, to advise him in person of .the accepted offer to purchase and to collect, if possible, the ten per.cent, deposit agreed upon; that defendant thereupon refused to comply with the terms of the contract to purchase, giving as his reason therefor that the rooms of the house were too small and the ceilings too. low; that he had with him the written contract of sale and exhibited same to the defendant, showing him that, the owner of the property had also.made written acceptance of the offer to purchase. There are two letters in the record which show that, within a reasonable time, defendant was oalled upon to comply with the terms of thfc eontraot and that his lawyer, in repxy to these demands, wrote á letter giving as the only exouse for failure to-comply with the contract the fact that defendant’s offer to purchase had been rejected. The testimony of the owner of the prop-*50arty is direct and positive that there was no .qualification. ah¿t-;' ever of his aooeptanoe of defendant's' offer-to purchase and. that said acceptance was signed hy him about 11 o'clock of the-saae day in whioh the offer to purchase was made, to-wit:-. April 11, 1922.
notwithstanding these positive statements made hy' plaintiff and the owner of the property, the defendant took thi stand and never at any time attempted to deny or refute the tear, timony given hy the plaintiff to the effect that the reason” for-' rejecting the property was that the rooms were’too small and the. ceilings too low. There is not a word from him in the record'as., to why hi* original offer to purchase was withdrawn, and the fact cannot he denied that his attempt to rejeot the offer to purchase, was made subsequent to the written aooeptanoe by the owner.
This -brings us to the only controversy in the’-whole'.' proceedings and involves the credibility or not of certain testi?-mony given hy the defendant, ms wife and son.' Their uniform; story is that the plaintiff phoned defendant's wife during tne day of April 11, 1922, and stated that he had "good and bad-news,1! about the proposed sale of the property and that- he would call-, at defendant's house at once to see him aoout the matter'. The defendant and- his son claim to have been present when plaintiff called, and both of them state that this remark was repeated to the defendant with the added statement "Would you be willing to pay$100.00 more for the property?" Ho other witnesses than those who are clearly interested witnesses are shown to have heard' such a conversation and the plaintiff vigorously denies that he ever-made such a statement either over the phone to the wife' or subsequently to the defendant and his son, and follows up his vigorous *51denial with the statement that he showed the written aooeptanoe to the defendant and that defendant's only response to the information that the property had been sold was that he would not take it because the ceilings were too low and the rooms too small and that he was not getting a "good buy."
Nothing that has happened in the whole history of the •transaction would justify the Appellate Court in believing these three interested and related witnesses when the trial, court, who saw and heard all the witnesses, doubtlessly disregarded defendant’s story or its attempted corroboration by his wife and son.
I am particularly unable to concur with the view of my colleagues in this matter beoáue hat I believe to be the controlling law of the case,, irrespective of the evidence. Even though plaintiff might have been guilty of an attempt to raise the price of the purchase for good or bad motives, it is evident that the offer to purchase was in such language as gave to the owner of the property the absolute power to accept and, by accepting,^bind the purchaser without further negotiations. There was nothing further necessary to bind the purchaser under the law applicable to the contract or offer to purchase, after the owner had signed the document above quoted.
Article 1802 Revised Civil Code reads:
"He is bound by his proposition, and the signification of his dissent will be of no avail, if the proposition be made under terms, which evince a design to give the other party the right of concluding the contraot by his assent; and if that assent be given within such time as the situation of the parties and the nature of the contract shall prove that it was the intention of the proposer to allow."
The language of the Article just quoted is peculiarly applicable to the facts of this case and it was not necessary, in order that the purchaser or defendant in this case should be bound, that either Reaman, the agent for both parties, or the owner should have noti-*52fled the defendant of the acceptance of defendant's offer to purchase. In other words, the contraot.in which is involved an offer and an acceptance, was fully completed and the minds of the parties in relation to same had fully met at the moment of the acceptance hy the owner of defendant's offer to purchase, that is, about noon of the sans day, to-wit:. April 11, 19S2, in which the entire proceedings over which this suit has arisen occurred.
In the case of union Saw Mill Co. v. Mitchell et al., 122 La., 900, the Court in discussing a case in which a contract to purchase certain timber lands had not been signed by the ven-dees or purchasers, clearly shows what ruling must be given under R. C. C. 1802, where the contract has been signed by all parties, particularly those who propose to purchase. In the latter case, as in the case now before us, if the proposition to purchase is made in such terms as show the intention of the purchaser to give the other party the right to bind the sale by assenting thereto, such assent is all that is necessary to conclude the transaction and bind those who aire involved.
In my opinion, both the law and the evidence is conclusive that the owner of the property herein involved could absolutely bind the defendant in this case to purchase the property in question. This faot when applied to the law of the case makes the plaintiff!s contract for commissions absolutely due and owing.
.Ror these reasons, I respectfully dissent to the majority opinion herein rendered .and believe that the judgment of the trial oourt^as appealed from^sliould be affirmed.