Smith v. Hussey

Citations

• 119 La. 32
• 43 So. 902
• 1907 La. LEXIS 432

Syllabus

<p>1. Vendor and Purchaser — Promise of Sale —Rescission—Earnest.</p> <p>_ An agreement for the sale of real estate, which contemplates the passing of property, not immediately and by virtue thereof, but by an act to be executed at a later date and which, in other respects, contains the elements essential to a sale, is a promise of sale, and, when “made with the giving of earnest,” may be receded from by either of the parties; “he who has given the earnest, by forfeiting it, and he who has received it, by returning the double.”</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 48, Vendor and Purchaser, §§ 188, 163.]</p> <p>2. Same.</p> <p>When, in a written instrument, importing an accepted promise to sell, the promisee uses the language, “I will deposit $3,000 to bind my purchase,” and the amount referred to is deposited with the promiser’s agent and received, for his account, it will be regarded as “earnest,” within the meaning of Oiv. Code, art. 2463.</p> <p>3. Same — Inability to Perform — Liability of Vendor.</p> <p>Where one makes a promise to sell real estate which he has already bound himself to sell to another, and subsequently admits to the promisee that he is unable to deliver it, he is liable to the latter for “the double” of the earnest received by him, and, this, without being put in default.</p> <p>(Syllabus by the Court.)</p>