Perkins v. Frazer & Nason

Citations

• 107 La. 390

Syllabus

<p>Syllabus.</p> <p>1. A contractor who has unadvisedly refused to perforin his contract may, while the situation of things is unchanged, retract the refusal, and go on with the contract; and is not cut off from so doing by the service upon him of a notice to the effect that, the contractee will hold such refusal to be a default and will sue to dissolve the contract.</p> <p>2. The facts being, as follows : that in March 1898 A and B entered into a contract by which A was' to furnish irrigation water and B to make a rice crop and pay water rent; that B denied owing any water rent for 1898, claiming that owing to the insufficiency of the water service the crop had suffered loss to an amount more than off-setting the water rent; that A did not press the payment of the rent, although B was well able to pay and could be made to pay ; that in March 1899 the parties entered into another contract materially amending the contract of 1898, but making no allusion to the water rent for 1898 ; that thereafter A did not renew the claim for this water rent, not even when in February 1900 written demand was made for the payment of rent due, and presumably of all rent due ; that the claim was renewed for the first time in defense to a suit by B to annul for non-performance of the contract in question, — held: this debt for rent of 1898 is presumed to have entered into the contract of 1899 as part of the consideration thereof, ai though not expressly mentioned in the instrument evidencing said contract. The modes of extinguishing obligations specified in Article 2130 of the Civil Code are not exclusive.</p>