E. Sondheimer Co. v. Richland Lumber Co.

Citations

• 121 La. 786
• 46 So. 806
• 1908 La. LEXIS 748

Syllabus

<p>1. Pleading — Motions — Election Between Causes oe Action — Exceptions.</p> <p>The fact that both specific performance and damages are demanded may afford ground for a motion to elect, but not for an exception of no cause of action.</p> <p>2. Contracts — Performance or Breach — Demand for Performance —• Institution of Suit.</p> <p>The institution of a suit is one of the modes of putting in default.</p> <p>3. Attachment — Grounds of —Debt—Certainty.</p> <p>The margin between market price and the price fixed in a contract for the delivery of lumber is a sufficiently certain basis for fixing the amount of a debt upon which to predicate an attachment.</p> <p>4. Same.</p> <p>Attachment may be resorted to as a _ conservatory measure to a suit which the plaintiff “intends to bring.” Hence, where plaintiff alleges that defendant is about to dispose of all his property and remove permanently from the state without fulfilling a certain contract, and that by the nonfulfillment of the contract plaintiff will be damaged in an amount stated, and that plaintiff intends to bring suit for the damages as soon as the time for fulfilling the contract has expired and the right of action has accrued; the liability of defendant is sufficiently a “debt” within the intendment of the Code of Practice to support an attachment.</p> <p>Breaux, O. J., dissenting.</p> <p>On Rehearing.</p> <p>5. Specific Performance — Grounds of Relief-Pleading.</p> <p>A petition, filed within 7 months from the making of a contract, which alleges that defendant agreed to deliver a certain quantity of lumber within 10 months; that it (defendant) has delivered part of the lumber; that it is about to sell all of its property in, and permanently remove its business from, this state; but which does not allege that defendant is in default on its contract, or intends making default, or that the alleged contemplated sale and removal will result in such default, discloses no cause of action for either specific performan