*79NO. 8105

COURT OF APPEAL PARISH OF ORLEANS.

STANLEY A. HARVEY versus MRS. W. C. NOLAN, et al.

Dlnkelspiel; J.

-Dissenting opinloa-

This litig'-tion arises from the following facts!

Plaintiff olidas tlwt On November 34th, 19Í8, de-fsnl.'nts granted unto him the right to purohase within ninety dt.ys from said date, certain property under the terms uni conditions mentioned in option.

jtirther olaims that the option in question was rexisted in Convey'..noe Dock 335, folio 543 on November 35th, }516; further alleges that within the said period of ninety days plaintiff notified defendant of his desire to avail him,elf of the terms of the said option to buy property in question and requested defendants to appear before l'.otury Dreifous to paso s!-id not of sele.

Alleging further that defe^nants announced their intention, after at first promising to pass the e,ct of sale, not to be bound by the terms of said option and felled and refused to sign the sot of sale to plaintiff notwithstanding emioabls demand and notwithstanding defendants having been put in default.

Alleging further that defendants have undertaken to sign what purports to be an aot of sale of said property to one G. A. Peyrefi :to and have caused the said alleged sale to be reoorded in the Conveyanoe Offioe and force alleging also that said sale is without/ beoause of the registry prior to the time- of the alleged sale of the option in favor of plaintiff.

Finally alleging that plaintiff had the opportunity in the event that defendants had performed their obligations under the terms of the said option and had sold the said property to plaintiff, to resell the same for the price and sum of Twenty Five Hundred Dollars, ¡paking a profit faxxiiw out of said option, oof the sum of Six Hundred Dollars and avers further in the alternative in the event that, speoifio performance as herein prayed for is not *81deoreed in hi? favor that theie should he a Judgment in the sum of Six Hundred Dollars as damages.

The prayer of the petition is that defendants be cited and that there be judgment in favor of plaintiff for the sum of Six Hundred Dollars, costs end for general relief.

To this petition defendants filed various exceptions, one, wait of jurisdiction rations materias, second for oyer of the notioe of accetjtanoe, third misjoinder of parties, fourth, petition discloses no ot-use of action.

These exceptions being referred to the merits answer was filed which substantially xxexXx asserts the following propositions:

That during the months of September and October, 1916 defendí jits employed plaintiff as their agent to sell the real estate described in plaintiff's petition; that plaintiff accepted the said agency and undertook to 3ell said property aa agreed and did actually find t. purchaser, one G. A. Psyrefitte, but failed to di ideas to defendants, this fact denying that he had found a purchaser and finrlly obtained defendants' signature to the document and that plaintiff's relation ae agent never terminated and as such agent he oould not under his oontraot Jas terminate same to his own enrichment*, without fully accounting to defendants for his agency and v/hioh he never did.

Alleging further that the act of plaintiff was a fraud upon defendants because he failed to give a full disclosure to them and attempted as agent to enrioh himself at defendants expense; further alleging that it was oontrary to the public policy of the State of Louisiana to act in the manner set forth and that it was an attempt by plaintiff to ohange the relation of agent to that of a third person, without rendering an aocount of the agency to defendants and alleging in reconventioh that plaintiff as their agent oolleoted from G. A. Psyrefitte on December 6th, 1916, the sum of $350.00 whioh he had failed to pay defendants^

*82Wherefore he was no-6 entitled to any commissions J on tills st-.le having noted in fraud of Ills prinolpuls,, rights and oontrary to their best Interest.

The prayer Is that plaintiffs suit bs dismissal at his- costs and for judgment in raocnvention in favor of defendant against pl..intiff in the sum of 1)350,UD v/ith interest from Deoember 6th, 1313 until paid, for costs and general relief.

Oh the trial of this c/ae .-It-intiff testified that on üóvembor 04gh, 1916, he obtained from the defendant an option v/hioh he identifies -ni which is annexed to his petition. Further testifies tint he exercised the option that was given hli.. «.¡id produced > nd annexed to his testimony said option of the date as stated in his petition and further tesiifiei th-.t the c..-tion was written at hr. II rinoni's Law Offios on his our. letterhead t-nd further testifies that defendants gave him a synopsis of all thj titles of the -property the option ofilled for ^.nd th-t notary Dreífoue examined the title and on January 5th notified defend.r.ta tl.: t he \n.s re.-dy to pass act of sale on January 9th but defendants failed to appear at -che notary's offios and tin. t Mr. Peyrefiite was the purchaser of the property and th-.t he bought under plaintiff's option and was to pay the sum of Twenty Five Hundred Dollars; also testified that he gave in connection v/ith his option to ilr. Us-rinoni, the sum of ten dollars in check.

He further testified:

Q. A long time prior to the date of this alleged option you noted í'-b Ur. llarinonl's agent, did you not?

A. Yea sir,

Q. Selling his real property?

A, Yea sir.

Q. Were you his agent up to the 34th of Jovea'oér?

A, Yes sir.

*83Q. You also was given this particular property to sell?

X« Tes sir.

He further testifies,’ without literally quoting, that Hr. Marinoni had a. lot of vaoant property and that he had sold to Hr. Peyrefitte, forty five feet of the property in question for the sum of Six Hundred Dollars but the Herinonis deolinsd the offer but dsoided to give plaintiff the option whioh he, Myrlnohi, did.

9. Tou know you were under no obligation to buy the property?

A. Ho sir. He- wanted mp to sell; said he needed the money, that he owed' the Bank ten thousand dollars and he wanted me to sell the entire property and not a part.

<J. Hr. Harvey, did you etfer disolose to Hr. Mrrlnoni that you had en offer of Twenty Five Hundred Dollars for this property?

A. I got the offer- oh December 6th for Twenty Five ¡faradmfd Hundred Dollars and X acoepted the offer promptly and I notified Mr. Marinoni I was going to exsroiae ay option.

9. Did you disoloee to Mr. Marinoni you he4 this offer of Twenty Five Hundred Dollars on Deoember 6th?

A. Ho sir,

Q. You thought you were under no duty wh&teyer to tell Mr, Marinoni what you were getting for this property?

A, Ho sir.

Q. As you were aoting ae Hr. Marinoni's agent for a long time why didn't you tell him?

A, Beoause on Deoember 6th, my agency peased and X considered he was dealing with me as an individual not as an agent when he- sold me the option. ‘

He further testified, without quoting, that he was dlokering with Mr, Peyrefitte for a period pf three months but not on this particular property but on other property belonging to other people.

He also teetifies that he had sold property for Marinoni- during 1916 and 1917 as agent.

*84He. goes on to testify that he oould not get anybody to buy those six lots as a whole and''then Marinoni offered to sell them to ;he witness and he wrote up the option on his own typewriter, in his own offioe, in his ovni words and offered some to me and I paid him ten dollars in a oheolc as a part payment for the option in question.”

On oross examination:

Q, Coming to the date that you had Ur. Marinoni sign this alleged option, had you terminated your agenoy with Mr. Marinoni?

A. The oontraot was only for a speoified time end I presumed it was terminated and evidently he considered it so and I considered it so.

And going on further to testify in this same connection he substantially says that he was representing Mr. Marinoni, trying to sell this property all the time for him as his real estate agent claiming in this oonnection that he was ft speculator and acted as an individual.

He further testified that when he got Mr. Marinoni to sign the option he had no prospective jmrohaser and that at that time he was not diokerlng with Mr. Peyrefitte for the six lots and only on the 7th of Deoember did Mr. Peyrefitte buy the lots in question.

Mr. Merinoni was called by plaintiff as on oross ex-mln; tion as under Act 126 of 1908 and substantially testified that he signed an option at the request of plaintiff who at that time and prior to that time was aoting as his agent, not only for the sale of the property in question but had aoted for him in other sales arid that plaintiff told him, Marinoni that he had sold the property) that he had a purchaser, but did not inform Marinoni of the name of the purchaser or the exact amount of the purchase prioe; always considered plaintiff as his agent and thought he was in duty bound to tell him the name of his purchaser and give him the aot purolv.se prioe; *85always considered plaintiff ae his real estate agent and had the utmost oonfidenoe in Mm, That plaintiff olalaed that under the rules of the Real Estate Exchange whioh allowed him only three per cent commission and that this was a very hard pieoe of- property sell, being unimproved property on Board Street; that he oouíd handle this property but for not less than one hundred dollars commission and suggested that in order to proteot plaintiff,for some reason or other, it would be better to write up some sort <S£ option so that plaintiff, as his agent could be better able to sell the property and witness having the utmost oonfidenoe in plaintiff told him to put the option anyway he wanted and throughout Hr. llarinonl's entire testimony he wwears constantly and repeatedly that plaintiff was his agent and that the option was given to him at his request for the reasons heretofore testified to and that was the only reason it was given to him at all.

Hr. G. A. Peyrefitte, the purchaser of the property in question testifies that he was the purohaser of the property in question and he signed the aot of sale before Hr. Henry P. Dart, Jr. líotory Public and that he was not induced to go to Hr. Dart's office to purchase this property, went there of his own free will and accord.

Q. Hr. Peyrefitte, will you tell the Court about what time it was when you started dickering with Hr. Harvey for the purohase of this property?

A. It was several weJcs before thE I made the deal; I anewered *-n a Vi about some other property whioh I could not get and then got Hr. H rinoni's lots; at first the prioe asked wc.e three thousand dollars and for several weeks I v/as dickering with plaintiff and finally he offered the property to me for Twenty five hundred dollars; I accepted the offer aid I gave hi... my cheok for ten per oent of the amount, $350.00; bh,.t was sometime in December but during the month of October Hr. IP'xvey w-..s always trying to sell ¡¿.rinoni's proferto'to witness; testified *86further that he never called upon Mr. Harvey but Harvey constantly urged him to buy this property but never would tell him who the owner was although he asked him several times.

Q. Did he leave the Impression he owned It?

A. ITo sir; I thought he was selling It for someone else. Consequently he bought the property dlreot from Mr. liarinoni for the same prloe.

On oross examination:

Q. Mr. Peyrefitte, when you first went to dee-l with Mr. Harvey.lt was the latter part of Ootober, 1916, id that a faot?

A. Yes sir; it must have been five or six weeks fully before ±ha I gave him the ohsok; he was weakokneed and was holding off all the time for a price.

The witness further testifies that he started to deal with plaintiff for two of the lots end when this offer was not aocepted and he could not buy the property that he wanted to buy, he finally bought the property in question.

A oareful investigation and olose study of this oase has oonvinoed/JHC^hs.t plaintiff had been the agent of defendants end as such successfully sold several pieces of property gaining the confidence of defendants.

Originally when this transaction began and defendants desired to dispose of the property in question they sought plaintiff and put in his hands the sale of the lots mentioned in this record. The prioe fixed was $1900.00, $100.00 of whloh was to be paid to plaintiff as his commission for the 3ale.

Plaintiff had oharge as agent for defendants, in this transaction, as he had oharge in former transactions ; had sought purchasers and amongst them was Mr. Peyrefitte who did not wish to buy but one- lot and one half and for that purohase offered Six Hundred Dollars, whioh offer was suomitted to defendants, who rebooted same; subsequent *87to this plaintiff endeavored time and again to dispose of the property in question as a whole,without success; he had met the present purohaser and endeavored to sell to him but the purohaser at the time refused to buy endeavoring to buy another piaoe of property whioh he considered too high for his use and was finally persuaded to buy the property in question for Twenty Five Hundred Dollars from plaintiff. In the meantime, whilst dealings were going on between plaintiff and Hr. Peyrefibte plaintiff Hugmaisi suggested to defendants thst an option be given him at the same prioe whioh they were willing to aooept from other parties and irrespective of the iafsadKEti* difference In the testimony of plaintiff and defendant on this point, the one that It wus sn option outright, irreapeotive of agency and the other the rever ;e, it ended in the sale of the property for Twenty-Five Hundred Dollars.

The purohaser has testified that he is disinterested us between the plaintiff end defendants, Shut he has became the owner of the property, title standing in his name and has paid Tienty Five Hundred Dollars; he swears and there is no contradiction us to his testimony. I','(my’|lopinion

It is absolutely true in^tfBopaiwtaBcthat during the time that ha wo3 looking for property in that neighborly od plaintiff w'-s insistent in trying to dispose of this property and during the ii term of his agency was urging purchaser to complete the trensaotion and finally oonvlnced that he had found a purchaser, being the same gentleman who has testified in this os.se he sought and / optained ojition in question, knowing at the time when he got the option that he was going to sell this property, not beoause he had the option, but simply because he saw a ohanoe and opportunity of making Six Hundred Dollars and when the defendants were notified to come to the Hotary1 Office, Hr. Dreifous, to sign the aot of sale, it was the first opportunity they had to know that their agent had mislaid them, virtually deceived them and declined as they *88has a right in my opinion, to sign, and subsequently sold the property direct to the purchaser.

Under these oircumstances I cannot oonoeive how plaintiff oan possibly expect to enrioh himself at defendant's expense.

In this opinion I am confirmed by the Judge of the Court aquo who saw and heard the witnesses and therefore had a better opportunity of judging not only from their evidenoe but having them before him and was therefore in a better position to decide this oase that I am. He has tal done so in a very able opinion which is herein made part of this, my opinion in this case.

We oopy in full verbatin the Judge's opinion:

"This is a suit by plaintiff to xascsac recover from the defendants the sum of six hundred dollars in default of a Judgment for speoiflo performance.

It appears that plaintiff had been acting for some time as the real estate agent of defendants, and was engaged in an endeavor to sell the particular property herein described as subject to ±5t his opition. He was particularly authorized to sell this property for the sum of #1900, but there was some hitoh in the negotiations.

On November 34 Harvey olalms to have obtained an iadixitaakij: option individually on the property for #10, which he olalms to have paid by oheok. He continued •to act as agent, and finally, after securing the so-called option, he undertakes to sell the property for #3500, to one of the prospective buyers with whom he was negotiating as the agent of defendants. When the defendants discovered that his agent was thus speculating upon him, he declined to acknowledge the validity of the so-called option and himself sold the property to the person who was the same individual with whom plaintiff had been conducting his negotiations.

*89The sale was mads for the sum of $3350, thus figuring the total of $3,500, allowing $250, She fee stipulated to he paid Harvey.

There is no evidence that defendant understood that there wa3 a distinct option given Harvey nor any evidence that the $10 was paid except the unsupported evidence of Harvey that he gave the check, and a denial by defendant that he received the money.

Agency requires the most careful conduct on the part of the agent. He is not, in good faith, allowed to speculate on a misunderstanding of his principal but is bound to disclose what he has learned in his agency to his principal, and cannot be allowed to privately reap a reward from his knowledge.

It appears to me that he is not entitled to a judgment for damages but must account for the money he has received on acoount of the sale.

Plaintiff has received $350, when, by special arrangement, he is entitled to withhold $125. He must account for the balance."

For the reasons assigned, I respectfully dissent the majority opinion rendered in this case.

-Dissenting opinion-»

*71opimos,

By his

Plaintiff aliagas that on Horember 24th 1916 defendants ^§Ta him a ninety days aptlan on six certain lota of ground for $1900; that within said period he notified than of his intention#te avail bins aIf thereof and demanded of then a transfer; that defendants refused to abide by their obligation, but on the contrary sold the property to a third party for $2600, thus making a profit of $600 on his preparty; which profit plaintiff non claims sb damages.

Ilio defense set up in the answer is that said option was obtained by fraud; towit, that at the time thereof and prior thereto plaintiff had been employed by them as their agent to sell said property, and had actually than found a purchaser therefor, towit, the rery Bane party to whom they sola, and at the Tory same price for which they soldj and all of which he failed to disclose when he obtained said option. Defendants farther Bet up that the option was without consideration; and finally that it was an attempt by plaintiff to evade the provisions ef Aet 42 of 1908, relatire to real estate agents, with which plaintiff had net complied.

*72I.

'.Calcing those up in reverse order we will first dispose of the defense last made. Aot 42 of 190E requires real estate _ agents to furnish a certain bond; whioh plaintiff had not done. But whatever may or may not have been the case on other occasions, it is certain that on th&s one occasion at least plaintiff did his beat not to aot as real eBtate agent, and to that end merely exercised a privilege lawfully accorded tofc.ll, towit, that of purchasing an option, Aot 249 of 1910

In so doing he was obeying the law, not violating it. for it is not unlawful to do that which the lav/ allows, even when done for the express purpose of avoiding something whioh the latf <f-3 forbids. Reeves vs Harper, 4* An 516, 522;■Scottish Mortgage Co vs Ogdon, 49 AB 10,14.

II.

She option declares that It was given in consideration of |10, reooipt whoroof is acknowledged in the instrument itself; and It is testified and not seriously denied that plaintiff gave defendants a perfectly good oheok for that amount. Defendants howevsr did not collect the oheok, and have aot even attempted to do so. But the answer to thiB is 1» the maxim "Volant! non fit injuria," for the consideration agreed upon was certainly put within the power of the defendants!; and if they did not choose to *73grasp it, their voluntary inaction oasnot result to their own benefit and to the prejudice of plaintiffs

Ills

Tha defense that theeption was obtained by fraud is net horas out by the evidence. Plaintiff testifies that ha had had tha property fer sals for account of the defendants and had offered it to one Peyrefitte. to whom defendants afterwards sold it; that Peyrefitte had offered $600 for about one third of it (towit, 46 fast eut of 106 feet front on Q'Railly Street); that the offer was submitted to defendants but the latter refused it; that defendants wanted to sell the whole property and at once; and that it was not until December 6th 1916, or nearly two#weelce axter the option had been given, that Peyrefitte for the first time showed any inclination whatever to buy the whole property; and that on the same day he and Peyrefitte had agreed on a price and had closed a deal for $£600o

In all of which plaintiff is corroborated in substance and- in detail, by Peyrefitte; and there is not a line of evidence in the record, written oh oral, which contradicts this testimony in the slightest degree, or even suggests that it might be untrue.

*743» auoh far the defensas aat up la the answer. Bat when the ease was on trial and the evidence helas take» a aew dafansa was developed, v/hioh though wholly untenablw in law, yet prevailed with the trial judge and formed the basis of his judgment; towit, that defendants when they gava the option did not know, or did not intend, that it should he a binding obligation, aooording to its true tenor, and merely thought or intended that it should serve as a formal constitution of agency.

But the physical ovidenoe in the record shows that this option was neither hastily nor thoughtlessly given. On the contrary it was the outcome and result of successive and different written propositions, all of which were submitted to a practicing attorney of more than 25 yaars experience in suoh matters, aoting for defendants, who made written suggestions of changas to bo nada and even assisted with his own hand in drafting the instrument as finally agreed upon and exeoutad.

But be all that as it may, the lav/ in this state, and the world over, is thoroughly well Battled, that one who voluntarily affixes his signature to a written instrument obligates himself aooording to the very tenor thereof; and^will not be permitted to say that he did not *75intend to obligate himself Taut meant to bind ¿himself a > only in some other way or oven not at all. DeSota Building Co vs Kohnstamm, Our No. 7267, and autheritios there cited; Bagneris vs Odde, Our No. 7471, and authorities there olted; also Boagui vs Fouchy, 26 An 694 and Advance Thresher Co vs Roger, 123 La 1067. Por signatures to an ohllgatlon are not mere ornaments, and parties will not he reliered therefrom simply because they did not know or did net intend what they signed. Boulet vs Sarpy, 30 An 494.

V.

But the $600 due plaintiff are subject to a credit of $260 reoelred by plaintiff as a deposit from Peyrefitte and dsduoted by hin from the purohase price; and also to a further oredit of $77.66 for the taxes of 1916 due by •plaintiff but paid by defendants. Hence the balance due plaintiff ly defendants is -)272o46, as stated in plaintiffs letter of Bobruary 1st 1917. And accordingly

The judgment uppealed from is therefore reversed, and it is now ordered that there be judgment in favor of plaintiff, Stanley A. Harvey, and against the defendants TJlysse Marlnoni, Jr. and Mrs. Olga liarinoni, v/lfe of William T. líolan, for the full sum of Two Hundred and Seventy-two u 45/100 Dollars (>272.45) and the costs of both courts.

*76S. A. HARVEY VS MRS. W. C. NOLAN & al.

No. 8105.

I owe it to the able District Judge and to our learned associate to give my reasons for differing from them in opinion in this case and concurring with the organ of this Court.

The instrument sued on is undoubtedly, upon its face, an option. But the defendants say that it was intended only as a power of attorney, and was nub in that form for reasons which it is not necessary to state. The plaintiff denies this. Wiom is it our duty to believe? The written instrument must incline the scales in favor of plaintiff. The intention of the parties and their risita and obligations must be found in that instrument. It is good and universal law that parol evidence shall not be admitted to contradict what is contained in an act. C. C. 2276. It is unassailable except for error or fraud. The defendants, through Mr. Ulysses Marinoni do not plead error, nor surprise, nor that he did not know what he was signing, nor that he thought that he was signing a procuration. He took an active part in the confection and writing of the instrument. His is not a simple, untutored, unsophisticated mind. He is a lawyer of learning and experience. His only defense is that the document does not contain his intentions nor those of the plaintiff. The burden of proof is upon him. The plaintiff answers that it contains the intentions of both parties. There is no other evidence in the case except the instrument itself. Defendant does not charge fraud in obtaining his signature; but if he does, he fails to prove it by the record. If Harvey had found a purchaser for only $1900 and the act of sale had been passed for that price, Marinoni might have refused to pay Harvey any commission, on the ground that he was merely carrying out the terms of the option *77and that Harvey was not acting a3 his agent. This Court cannot put such a construction upon this instrument which would enable either party, as his interests might dictate, to treat it as an option or as a procuration. The rights of the parties were transfixed by the instrument, and upon its unambiguous terms they must be judged. There is nothing in the law which prevents a real estate agent from reporting to the form of an "option" rather than that of a "procuration", for the purpose of effecting a sale for the owner. Indeed it is not an uncommon practice. There may be more money in it for the agent if he procures a larger price than the option,and a greater incentive for his exertions. He may even obtain this option after he has secured a purchaser. It is only where he has acted as agent and obtained a purchaser prior to the option that his action would be contrary to good morals and to law if he obtained an option for a less price than the one he had previously secured from his purchaser.

Defendant understood that an allegation of that kind was an essential foundation of bis defense. In his answer he alleges:

"That thereafter (after plaintiff had found a purchaser) and without disclosing to respondents this fact, and denying that he had found a purchaser, he thereupon fradulently obtained respondent's signature to the document sued upon".

No evidence supports that allegation.

It is proven, on the contrary, that although the relations of Marinoni and Harvey; as principal and agent, began prior to November 24th, when the option was signad, it was only on December 6th, that Harvey obtained the consent of the purchaser to buy the lots for $2500. There was nothing in the law which prevented Harvey, agent, from buying fresa Marinoni, principal, or from obtaining from him an option, unless, as *78we have said before, he had already secured the purchaser . on the date of the option. The evidence is to the contrary. I think therefore that the option was good and valid, and that the defendant must pay the profit he has .made in the sale. Doriocourt vs Lacroix, 29 A. 286.