Horn v. Graffagnino

Citations

• 121 La. 263
• 46 So. 303
• 1908 La. LEXIS 668

Syllabus

<p>1. Specific Performance — Evidence—Admissibility.</p> <p>Mrs. A. Graffagnino and her son Dominick owned in indivisión a lot of ground in the city of New Orleans. On March 12, 1906, the son signed the following writing: “Received from Mrs. George Burch (plaintiff) the sum of two hundred dollars being deposit on account of the purchase of the property belonging to Mrs. A. Graffagnino, No. 3524 Camp street, for the sum and price of twenty-nine hundred and fifty dollars cash; purchaser must pay taxes of 1906, and if the act of sale is not passed by the first of April the purchaser will have all rents due from that date.”</p> <p>At that date the property was under lease to one Neilson, and the plaintiff (his mother-in-law) was living with him on that property. Claiming that -the instrument evidenced a saie of the property plaintiff brought suit to compel Mrs. Graffagnino and her son to deliver title and possession of the property to her upon payment of the sum of $2,950, the purchase price thereof, less the sum of $500 to be retained by her for expenses to be incurred in obtaining the cancellation of the mortgages. On the trial plaintiff sought to elicit from Mrs. Graffagnino, through interrogatories on facts and articles propounded to her, that she had authorized her son to sign the instrument and had consented to the sale of the property. Her counsel objected to their being answered on the ground that she was in possession of the property, and interrogatories on facts and articles could not under such circumstances be propounded, and that a mandate to sell real estate had to be evidenced by writing. The court sustained the objection, .and after trial rejected plaintiff’s demand, and she appealed. Held, the rulings of the court were correct, and the judgment under the pleadings is affirmed.</p> <p>2. Same — Sufficiency of Performance by Plaintiff.</p> <p>A party seeking to compel the specific performance of an alleged contract of sale must allege and prove or at the