ON REHEARING
HAMITER, Justice.A rehearing was granted herein to permit us to reconsider our original conclusion that plaintiff, Norman Lind Young, was entitled to recover a deposit of $2475 made by him in connection with his agreement to purchase from Mrs. Helen W. Stevens, one of the defendants, a certain lot and improvements located in the City of New Orleans.
The other named defendant is Latter and Blum, Inc., a real estate firm which, in the pleadings, set forth its position as holder of the deposit.
Our judgment on the original hearing was, in effect, an affirmance of the Court of Appeal decree which had reversed the *83district court’s judgment dismissing plaintiff’s suit and awarding to the two defendants the amount of the deposit.
On March 9, 1965, in a written agreement entitled “Agreement to Purchase or Sell”, Mrs. Stevens offered to convey and Young agreed to buy the premises described as “1228 Arabella Street, Single Two Story on grounds measuring about 40' x '20' or as per title.” (Additional details of the agreement are set forth in our original opinion and need not be repeated here.) In connection therewith Young deposited $2475 with Latter and Blum, Inc., the seller’s agent, representing 10% of the proposed purchase price. (Underscoring ours)
Later, Young refused to take title in accordance with the agreement, claiming that there existed encroachments on the property.
Thereafter, he instituted the instant suit to recover the deposit. He alleged in his petition that he was ready, willing and able to purchase the premises in accordance with the agreement, but that Mrs. Stevens “was unable to deliver merchantable title to said property, in that a survey had shown that there were both fence and driveway encroachments by the adjoining property upon the subject property, which said encroachments rendered the title unmerchantable.” (So that there is no misunderstanding, we note here that in our original opinion we pointed out that the plat in connection with the survey made on behalf of plaintiff in 1965 indicated that some of Mrs. Stevens’ fences to the rear of the lot appeared to encroach slightly on adjoining property. We express no opinion as to the effect of such encroachments, if they in fact existed. They were not pleaded by plaintiff in his suit to recover the deposit and no evidence concerning them was taken. The fact that such plat was admitted into evidence does not constitute an enlargement of the pleadings, this for the reason that it was admissible for the purpose of showing the encroachments specifically and solely alleged.)
The record reveals that the lot in question is designated on the 1965 plat as Lot X fronting on Arabella Street in Square 44, Hurstville, Sixth District of the City of New Orleans, said Square being bounded by Nashville Avenue, Prytania, Arabella and Perrier Streets; and according to Young's brief the alleged encroachments thereon by the adjoining property consisted of: “1. A concrete drive strip encroaching onto the lot in question from the property on the Prytania Street side to the extent of one foot at the intersection of the Prytania Street side property line at Arabella Street and tapering back in diminishing width to a point on the Prytania Street side property line about 25 feet distant from the front of the lot on Arabella Street.
“2. A fence encroachment onto the property on the Prytania Street side commencing about half way back from the front of ? *85the lot, to the extent of 1 foot 3 inches, and tapering down to the property line about two-thirds of the distance from Arabella Street to the rear of the lot.”
Moreover, it was stipulated at the trial that prior to executing the agreement to purchase the proposed vendee made a visual inspection of the premises, at which time the fence and driveway (the only alleged encroachments) were located and plainly visible in the positions above described.
Plaintiff contends that, even though the agreement recites that the lot is "about 40' x 120',” because of the contract’s recital of “as per title” the description and calls of the title of Mrs. Stevens’ control, and she must be able to deliver all of the land described in such title. In this connection he says that inasmuch as her title shows the property to extend 40 feet on Arabella Street commencing 80 feet from Prytania Street it is unmerchantable since she cannot deliver 40 feet because of the encroachments on the Prytania Street side. (Italics ours)
But our further consideration of this case leads us to conclude, contrary to our original holding, that plaintiff’s position is untenable.
Plaintiff relies primarily on Jacobs v. Freyhan et al., 156 La. 585, 100 So. 726. (His counsel cite also several other decisions of this court and of the Courts of Appeal involving circumstances similar to those in such cause.)
In the Jacobs case, following an inspection of the premises, the proposed vendee agreed to purchase the property and improvements described by a certain municipal number or “as per title”. Thereafter, it appeared that part of the land and improvements shown to the purchaser, as being contemplated in the sale, encroached on the property of his adjoining neighbor and, consequently, the vendor could not convey title to all of the land and improvements seen by the purchaser as included in the agreement.
That situation is not the same as here where there were visible encroachments on the vendor’s ideal title by an adjoining neighbor. The seller in this cause can convey good title to all that was exhibited to the buyer and as being included in the sale.
Incidentally, we note that, rather than being in support of the position of this plaintiff, the theory of the Jacobs case is in favor of the opposite view. In holding that the purchaser need not take title we said: “Defendants take the position that the property which they obligated themselves to convey was described by reference to their title papers; that the frontage on Dufossat street called for thereby is there, and that it can make no difference that an actual survey showed the improvements to encroach upon adjoining property to the extent mentioned. However, it is not disputed that the agent of the seller took the prospective purchaser to the premises, pointed out the property as that bearing municipal numbers, in-*87eluding No. 1648 Dufossat street, with the fences and improvements situated as they appeared upon the ground. Neither can there be any doubt but that he thought he was buying all the property within ‘those inclosures. In these circumstances, to require him to take the property in the condition which the survey showed it to be would be to make for him a contract by judicial mandate which he clearly never intended to enter into, and which, as evidenced by this litigation and the efforts to straighten out the title so that he might comply, he would not have made. There was, therefore, no meeting of the minds, or at least an error of fact as to a material part of the agreement which renders it ineffective as to plaintiff.” In other words, the agreement to purchase in that case contemplated what was shown as the subject of the sale, rather than the description called for in the title. (Italics ours)
The circumstances existing in Hunley et ux. v. Ascani et al., 174 La. 712, 141 So. 385, on the other hand, are almost .identical with those shown to be present in the instant matter and such decision, we think, is controlling here. In the Hunley case, the purchasers, after inspecting the premises, agreed to buy the lot and improvements, designated by a municipal number, “the ground measuring approximately 30' x 120', or as per title.” Subsequently, they refused to comply with the agreement and sued to recover their deposit, alleging that the front of the property contained only 26' 4" instead of the 30' called for in the agreement. In denying recovery this court approved the reasons of the trial judge as follows: “ ‘Now, as to the second objection, that the property, instead of being 30' front on Seventh street only had 26/ 4". The words describing the property, after declaring it to be the double cottage Nos. 1728-1730 Seventh street between Carondelet and Baronne, proceeded with these words “the grounds measuring, approximately, 3(7 by 120' or, as per title.” The question then arises: What was offered for sale, what was seen, what was contracted for? The evidence convinces me that what was offered was this double cottage situated on Seventh street, and that the grounds, as shown by visual observation to the two prospective purchasers was the property they saw. They saw the lines, they saw the community driveway, they saw the rear of the property, they saw everything connected with it; and then they agreed to purchase that property with the dimensions, first 3(7 x 120', if such it was, or more or less, if the title held by the owner was more or less.’ ”
With reference to the meaning of “as per title” the court said:
“ ‘In my opinion, the canon of construction * * * forbids this court to read out of this contract the words “or as per title”; and, when the court finds itself unable to read these words out of the contract, to consider them not written, it is considered by *89the court to be a reasonable construction and interpretation of these words that the parties to the contract having seen the property themselves, the estate, as it is sometimes called, desired to be the owners of it and were willing to take it as viewed, according to the title, which would embrace the physical things that they saw. * * * ’ ”
Likewise, in the instant suit the buyer agreed to purchase the property as viewed and in accordance with a title which would wholly embrace the physical things that he saw and intended to purchase. There can be no doubt but that the vendor can deliver title and peaceful possession to everything shown, and which was intended to be included, in connection with the sale.
The plaintiffs in the Hunley case, incidentally, also relied on Jacobs v. Freyhan, supra. The court in discussing that decision and its applicability observed, as we have heretofore noted, that “ ‘Instead of that case being one beneficial to the plaintiffs’ case, it is, in my opinion, one damning thereof.’” And it concluded: “‘Now, in this case the property was seen, the house and all the improvements are on the 26,4, the community passage way is there, as shown, and is mentioned in the contract; and everything these plaintiffs saw, wanted, and understood they were contracting for, is there and is ready to be turned over to them on their complying with their obligations. This case is radically different from the case of Jacobs v. Freyhan, 156 La. 585, 100 So. 726. There Jacobs saw a house he wanted to buy, contracted to buy, and found the house was situated partly on the ground belonging to other people. In this case the plaintiffs saw the house, saw the premises, saw the estate, and, although the property has neither 30 feet on Seventh street nor has it a depth of 120 feet, yet the proposed vendor, Ascani, has a good title to everything that the plaintiffs saw and wanted to purchase, and it seems to me that is the correct interpretation and construction to be given those words, “or as per title,” that the would be purchasers saw everything that they desired to purchase and to which Ascani had a good title.’ ”
(Hunley v. Ascani, supra, was cited with approval and followed in the later Court of Appeal case of Kindred v. Hardie-Meric, Inc., 159 So.2d 370.)
Plaintiff’s counsel make an attempt to distinguish the Hunley case from the present one by showing that the opinion therein mentioned that the agreement to purchase referred to a “ ‘community driveway privilege’ inserted in the title”; but the attempt is without substance. Even a cursory reading of the opinion reveals that such reference in the agreement formed no basis for the court’s result. The driveway privilege was mentioned only to show that the seller could deliver title to everything that the buyer saw and intended to purchase, including the community driveway privilege and other improvements.
*91Nor do we view as sound the distinction sought to be made in the original opinion herein that the Hunley case dealt with a discrepancy in the quantity of ground, while the instant one deals with encroachments. The only possible effect of the presence of the encroachments in the present dispute (although not a certain one in view of the use of the word “about” in the contract relative to the measurements) is that they provide a slight shortage in the quantity of ground to be conveyed. The shortage does not, per se, render the title (which the seller offers) unmerchantable or subject to litigation. Rather, as the district judge correctly concluded, “ * * * the encroachment * * * was of a very insignificant nature. Certainly, the purchaser would not have to engage in any litigation whatsoever in order to have a proper merchantable title to the property which he intended to buy and which he examined and actually saw prior to the execution of the agreement to purchase and which he purchased as per title (the title containing the encroachments as indicated in the previous acts of sale.)” (Italics ours)
Furthermore, our review of the record before us reveals, as observed by the district judge, that Mrs. Stevens’ title shows the discrepancies involved here. In the transcript is a recorded deed executed in 1946 between two of her ancestors in title. It refers to an annexed survey which shows the encroachments on the ideal dimensions.
Also, a joint stipulation of fact, entered into between the parties for the purpose of the trial, recites: “A copy of the survey to which reference is made in the most recent acquisition by defendant, Mrs. Helen W. Stevens, of the subject property, being an Act passed before L. H. Rosenson, Notary Public, dated July 13, 1962, and recorded in the Conveyance Office of the Parish of Orleans, State of Louisiana, in Book 647, Folio 693 is annexed to an earlier Act of Acquisition by defendant, passed before Ralph N. Fishman, Notary Public, on April 1, 1957, and shows that encroachments presently upon this property were also in existence at that time.” (Italics ours)
True, in the description of the property in the body of the vendor’s most recent deed that was executed in 1962 (above mentioned and which was apparently part of a “sale and resale” between her and a homestead company) it was stated that a 1915 survey shows that the lot commences at a distance of 80 feet from the corner of Prytania and Arabella Streets. But the description further recites that according to a plat dated October 19, 1956, annexed to an act before Ralph N. Fishman, Notary Public, dated April 1, 1957, the lot commences an actual distance of 81 feet 3 inches from that corner as shown on said survey. (The discrepancies are also noted in the body of the 1946 deed referred to above.)
Defendant, therefore, is able to deliver the property actually examined by plaintiff *93and as per her title, 'the latter showing the lot to have ideal dimensions of 40' x 120’ with the indicated encroachments.
The trial court dismissed the suit and granted to Mrs. Stevens a judgment against plaintiff for the full amount of the deposit. It further decreed that Latter and Blum, Inc. should turn over to Mrs. Stevens such deposit less that portion thereof due for its commission. Mrs. Stevens, in this court, asserts that she should be awarded a judgment against plaintiff not only for the deposit but also attorney’s fees and the amount of the agent’s commission.
We have examined Mrs. Stevens’ answer to plaintiff’s appeal to the Court of Appeal. Therein she sought an amendment to the judgment only insofar as it denied her attorney’s fees. Inasmuch as she failed to ask for an amendment with regard to her demand for recovery of the real estate commission the judgment in that respect is not before us, is final, and it cannot now be changed.
We do, however, believe that Mrs. Stevens is entitled to recover attorney’s fees under specific provisions of the agreement. In fact, it appears to have been conceded that the party in default should be awarded reasonable attorney’s fees. On that basis the Court of Appeal rendered judgment in favor of Young in the amount of $500 as the value of such services when it concluded (erroneously, we think) that Mrs. Stevens was in default, although no direct -evidence as to their value was introduced.' It appears to us that the services rendered by Mrs. Stevens’ attorney are of the same value as those rendered by Young’s attorney. We accept the Court of Appeal’s finding as to such value, and we shall award attorney’s fees in the amount of $500 to Mrs. Stevens.
For the reasons assigned the judgment of the Court of Appeal is reversed and set aside. The judgment of the district court in favor of Mrs. Stevens and against plaintiff Young is amended so as to increase it by the amount of $500 for attorney’s fees. As thus amended, the judgment of the district court is reinstated and made the final judgment of this court.
McCALEB, J., dissents, being of the opinion that the result reached on first hearing is correct. SUMMERS, J., dissents and adheres to the reasons assigned in the original opinion.