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CHAPTER 1

Salles v. Stafford, Derbes, and Roy, Inc. FACTS: P and D enter into a written contract for the sale and purchase of ten lots of ground. ( Bond for deed, a security measure for obligor). R.S. The contract contained a clause: Specifically, the clause relating to the 1) the vendor may have a new map or survey made 2) This map, if made, may show a change of position or location of the property sold, provided the same number of square feet and location in the same square or plot shall be retained 3) the vendor at his discretion make apply for and obtain dedication of streets. Potestative condition- depends upon the whim of one of the parties- not enforceable. PROCEDURAL: the court rendered in favor of plaintiff and Court of Appeal affirmed. ISSUE: Did the object of sale of the contract lack certainty (because it was too benefical to the vendor) making the contract null under La. C.C. art. 1779 and did the defendant breach the contract? RULE: Art. 1779 Term is presumed to benefit the obligor unless the agreement or the circumstance show that it was intended to benefit the obligee or both parties. ANALYSIS: The court does not understand how the privilege granted the vendor of making a new map or survey without prejudicing the rights of the purchaser nullifies the contract. The other privilege granted the vendor to change the location of the lots in the same square does not make the object of the contract uncertain. The conditions of the contract are to be construed as the parties must be supposed to have understood them at the time of its execution. The agreement of sale is not a nullity for uncertainty, but the case will be remanded for decision on the breach of contract claim. PROPOSITION: When parties enter into a contract to sell a plot of land (an object) to another and there is a special provision in the contract which allows the seller to create a new map which changes the location of the plot in the same square but the size & shape remains the same, the object will be considered certain and the contract will not be voided because parties are free to contract for whatever they want as long as it is lawful.

Harrison v. Gore: FACTS: Ms. Harrsion alleges in her petition that she was molested and sexually harassed by her high school basketball coach. She filed the petition eight years after the last tortious act. The prescriptive period is 1 year. She is filing an exception to prescription that the court failed to apply the 10 year contractual prescriptive period to her claim. Respondeat superior- employer is responsible for their employees. (vicarious liability) The court looks at the damages to see if it is based on tort or contract.

Art. 1998. Damages for nonpecuniary loss Damages for nonpecuniary loss may be recovered when the contract, because of its nature, is intended to gratify a nonpecuniary interest and, because of the circumstances surrounding the formation or the nonperformance of the contract, the obligor knew, or should have known, that his failure to perform would cause that kind of loss. Regardless of the nature of the contract, these damages may be recovered also when the obligor intended, through his failure, to aggrieve the feelings of the obligee.
ISSUE: Should Art. 3499 which says that personal actions have a prescriptive period of ten years apply or is this claim barred by the one year prescriptive period? RULE: Art. 3467- liberative prescription runs against all persons unless exception is established by law. Art 3467 even if it is a minor or incompetent same rule.

ANALYSIS: Even when tortfeasor and victim are bound by a contract, courts usually apply the delictual prescription (1 year) to actions that are really grounded in tort. The 10 year liberative prescription is a applicable only in the absence of another, specific legislative statement. The fact that the father had a contract with Trinity Heights does not change the nature of the harm. The conduct arises from an intentional tort barred by the prescription and is not a breach of contract. Contract law is general legislation and the tort is specific legislation, the more specific should be applied. Court held in favor of the defendant. The nature of the breach will determine if contract or tort law will be applied. Court will look at the real source of complaint in this case the real complaint is tortuous not contractual even though the is arguing that there was breach of contract on part of the school. Chapter 2 Briefs Belgard d/b/a Belgard Construction Company v. Collins
628 So.2d 1254 (La.App.3rd Cir. 1993) No meeting of the minds

Facts 1. Collins store was damaged by a tornado in Nov. 1987. The building was insured by AllState. Belgard came to Collins and said he would get a engineer to get an estimate. The engineer actually did the work. 2. Belgard claims that Collins entered into an oral contract with him by his performance of consulting services, presentation of 3 construction bids, and delivery of bids to All-State office. 3. Collins claims that she never entered into an oral contract with Belgard and believed him to be a commercial contractor soliciting for work. Collins believed she hired the engineer, Beard, and that she in no way was under a contract with Belgard. Proc. History 1. DC rendered judgment in favor of Collins, finding that there was no oral contract between the parties because there had never been a meeting of the minds. 2. Belgard appeals the judgment asserting as error the trial courts failure to find that there was a contract between the parties. Issue Whether an oral contract existed between the two parties? Holding No, there was no oral contract between the two parties. There was no uniformity of the will of the 2 parties. The court says Defendant did no believe she was forming a contract with plaintiff. Here, the plaintiff bears the burden of proving that there was a meeting of the minds by a preponderance of the evidence.

Rules 1. Four elements are required for a valid contract: (1) the parties must have legal capacity to contract; (2) the parties mutual consent must be freely given; (3) there must be a lawful cause or purpose; and (4) the object of the contract must be lawful, possible, and determined or determinable (CC Art. 1918, 1927, 1966, and 1971) 2. A party who demands performance of a contract has the burden of proving the existence of the obligation (CC Art. 1831). 3. The existence of an oral contract with a value in excess of 500 dollars must be proved by at least one witness and other corroborating circumstances (CC Art. 1846). Reasoning The evidence supports the conclusion that Collins never agreed to hire Belgard to do consulting work. She believed he was a contractor bidding for the construction work on her building. This is supported by the fact that Collins believed that she was the one hiring Beard, the engineer. If she had contracted with Belgard to do consulting work which included inspection of the building by an engineer, Collins would not have called Beard in February or March in order to find out what she owed him. This was several weeks after Belgard had presented his package of information to Collins; the date he claims an agreement was reached regarding his consulting services. However, Collins is responsible for paying Belgard $1,314.20 for his cost of hiring Beard, which Collins received a benefit of expert advice. The court ordered Collins to pay Belgard the amount plus legal interest from the date of judgment. North Louisiana Milk Producers Assoc., Inc. v. The Southland Corporation
352 So.2d 293 (La.App.2d Cir 1977) Consent-offer & acceptance

Facts 1. Plaintiff (N. La. MPA) and Defendant (Southland) had previously conducted business in the buying and selling (sale) of milk from one another, at a price determined by the fixed pricing system set forth by either the state agency or federal agency regulating such activities. 2. Plaintiff sold the milk at the highest minimum cost from either the state or federal agency. 3. When the minimum pricing came under fire in 1976, Plaintiff decided to set its own price for milk sold to Defendant, and notified Defendant as such of its new pricing. 4. Plaintiff and Defendant corresponded from August 1976 to April 1977, essentially bargaining over the price of milk. Plaintiff stated that it would sell its milk at its own set price, and Defendant stated that it did not like the price and would only pay the government established minimum price. 5. During the time of negotiation, Defendant continued to order milk from Plaintiff, and Plaintiff billed Defendant at its own established price. 6. Defendant paid Plaintiff the amount of the government minimum price.

Proc. History 1. Plaintiff brought suit against Defendant in December, 1976 for the difference in price of $79, 958. 2. DC entered judgment for the Plaintiff for said amount. 3. Defendant appealed stating that the DC erred in supplying the price. Issue Whether or not an agreement existed for the price of bulk milk delivered by the plaintiff to the defendant? Holding Yes, a contract existed for the price of milk delivered by the plaintiff to the defendant. We hold that P made an operative offer to sell to the D at stated prices for a stated period of time, the acceptance of which was contemplated to be an order made by defendant for a specific quantity of milk. We hold that correspondence did not constitute an operable offer to buy from P b/c the correspondence did not order a specific quantity at a stated price. We further hold that when the Ds employee verbally placed a periodical order for a specific quantity of milk, and w/o conditioning the order as to price, each periodical order constituted an acceptance of plaintiffs standing offer to sell at its stated price Rules 1. The Louisiana Civil Code states that an offer is a proposal to do something or to refrain from doing something in return for a counter-promise, an act, or forbearance. 2. To be considered an offer, 3 requirements must be established: a. The design to give the other party the right of concluding the contract by his assent; b. The offerors intention to obligate himself; c. A serious intent. 3. When requirement A is absent, the proposition cannot be considered an offer, but rather an invitation to negotiate, or an expression of willingness to receive an offer from the other party. 4. The intention required under B must be that of creating a legal obligation and not one in the moral sense or a duty in conscience. 5. A quotation of prices is not an offer ot sell in the sense that a completed contract will arise out of the mere acceptance of the rate offered, or out of the giving of an order for merchandise in accordance with the proposed terms. But when a merchant, on request, send a price list to a customer who orders goods in accordance with the price list, there is a contract formed between them for the price and upon conditions mentioned in the price list.

Reasoning The court concludes that plaintiff made a standing or operative offer to sell for the stated period as was expressed in the monthly correspondence as well as in some telephone calls between the managers. The court considers the offer which was made an offer to sell rather than an offer to buy. In order to be legally operable and to create a power of acceptance, it is necessary that the offer shall contain all of the terms of the contract. It is not enough for one party to say what he will do; he must also say what he will do it for, that is, what the other party must do in exchange.

Illinois Central Gulf Railroad Company v. International Harvester 368 So.2d 1009 (La. 1979). Action: Plaintiff filed this eviction suit alleging that defendant breached its contract by subleasing property leased from plaintiff. The district court ordered defendant to vacate the premises and deliver possession of the property to plaintiff. The defendant appealed and the court of appeals reversed, indicating that plaintiff's silence over the matter over a period of 16 months amounted to consent of the sublease. Plaintiff appealed. Facts: Plaintiff leased some land to defendant for defendant to operate a sales and service center for trucks. This land was directly across the street from where the Superdome was being built. After the Dome was built, the property values increased significantly. Defendant moved its sales and service center to another location, and built a new building on the leased property. In 1975, defendant asked plaintiff if they could sublease the property for use as a parking garage. Plaintiff refused, citing the previously signed lease agreement. Despite this, defendant did sublease the property for the parking business. Later that year, a representative of the plaintiff contacted the defendant in writing, requesting that they meet to discuss the situation, but did not specifically mention the sublease. Letters passed back and forth but nothing came of the matter. 16 months later, an officer of the plaintiff complained to defendant about the problem with the leased property. Defendant responded by saying that it was complying with the terms of its lease. Plaintiff filed suit shortly thereafter. Issue: Did the lessor by its silence and acceptance of rentals under the circumstances of this case impliedly consent to a sublease and a modification of the lease clause restricting the tenant's use and occupancy of the premises? Should the court, by applying the doctrine of abuse of rights to the facts of this case, refuse to enforce the lessor's right under the lease contract to withhold permission from the lessee to enter a sublease with a third party? Held: Reversed judgment of trial court reinstated.

Rule: Consent results from a free and deliberate exercise of the will of each party where the intent has been mutually communicated or implied, and accepted by the party to whom a proposal is made. Consent may be implied in the following instances: (1) when it is manifested by actions, even by silence or inaction, in cases in which they can from the circumstances be supposed to mean, or by legal presumption are directed to be considered as evidence of an assent. (2) when actions without words are done under circumstances that naturally imply a consent to such contract.

In cases where the law does not expressly create a legal presumption of consent from certain facts, it is left to the discretion of the judge to determine if consent is to be implied from the particular circumstances of the case. Reason: The court held that there was no showing that the plaintiff consented to the modification of the leases such to permit the sublease. Additionally, the plaintiff declined defendant's request to amend the lease and offered instead to cancel the lease. This request and denial of the request show that plaintiff did not consent. As far as the delay in filing the suit, it was shown that plaintiff is a company headquarter in Chicago with vast real estate holdings. It's delay could have been based on its lack of information and inattention rather than consent. Marine Ins. Co., Limited, of London, Eng. V. Rehm 177 So. 79 (La. App. Orl. Cir. 1937). This is an action for negligence subrogation claim. Action: Plaintiff filed suit against the defendant seeking to recover, under subrogation, monies it had paid its insured for damages to his vehicle. The trial court dismissed the suit and plaintiff appealed. Facts: Klein parked his vehicle at defendant's parking lot. He then received an identification ticket and paid the parking fee. Three hours later, Klein returned to find his vehicle stolen. Klein was then paid $300 from his insurer, who is the plaintiff in this suit. Issue: Was defendant's acceptance of the parking identification ticket considered a contract between the parties. Held: Reversed.

Rule: A person who receives a check for baggage entrusted to a transfer company is not bound by an inscription on the baggage check limiting liability of the transfer company in the absence of proof of assent by the passenger. The depository is bound to use the same diligence in preserving the deposit that he uses in preserving his own property. Reason: The court held that a proprietor of a parking lot who collects a fee for parking automobiles is a compensated depository. As such, he is held to take as good care of those vehicles as his own. Although defendant argued that he was providing a public service and only charged a nominal fee, the court found that the statute is clear and that if the application of the statute against this type of business in not in the public interest that the legislature and not the courts should address this issue. Cashio v. Amco Transmissions 613 So2d. 765 (La. App. 3rd Cir. 1993). This is an action for negligence property damage. Action: Cashio filed suit against defendant for property damage due to defendant's negligence. The trial court held in favor of Cashio and the defendant appealed. Facts: Plaintiff and his son drove to New Orleans to go to a Saints game. The observed a sign that stated "Parking $3.00. This sign was at the Amco Transmission shop. They spoke with an attendant, who was wearing an Amco shirt. The attendant indicated that he was employed by Amco and that

plaintiff could park there for the fee. The owner of the shop, as well as the attendant were going to the game as well. When plaintiff returned, their vehicle was missing. Neighbors to the shop confirmed the existence of the parking lot attendant. Plaintiffs then filed suit. Issue: Was the legal relationship between Macaluso and Cashio that of compensated deposit or merely a lease of space? Held: Compensated deposit. Affirmed.

Rule: It has been recognized that the general rule is that parking lots are to be treated as compensated depositaries. Notwithstanding any provision of law to the contrary, the leaving or parking of a vehicle by any person at a parking meter operated by any municipality or other political subdivision or at any privately owned unattended parking lot, when such parking lot has signs prominently displayed informing customers that the lot is unattended and when the owner retains the keys, shall not give rise to a contract of deposit by only to one of hiring or letting out space, and neither the political subdivision nor the parking lot owner shall thereby incur the obligations or the responsibilities of a depositary for losses as a result of theft, vandalism, or property damage. Reason: The court held that the statute above regarding parking is not applicable to this case. In this case, the only sign displayed was the cost of the parking, and did not state that the lot would be unattended. Further, there was no indication that defendant intended to limit liability by merely leasing space. Once plaintiff gave defendant the vehicle and the defendant knows it is there, consent is implied. Based on this, it was determined that defendant would have to exonerate himself from fault, but the records indicates that he has not done this.

Johnson v. Capital City Ford Company, Inc. 85 So.2d 75 (La. App. 1st. Cir. 1955). This is an action for specific performance of a contract. Action: Plaintiff sued the defendant, seeking specific performance of a contract. The district court held in favor of the plaintiff and the defendant appealed. Art. 1758Facts: Defendant ran an ad in the local paper (see page 43). Plaintiff alleged that based on the ad, he purchased a new 1954 Ford from defendant and traded in his existing vehicle. Defendant later refused to give the plaintiff a 1955 model as was advertised. Defendant indicated that plaintiff was under a duty to inform them that he was there to accept the offer, as it would not have paid as much for his trade if that were the case. Defendant apparently did not inform plaintiff that the trade in would alter the offer. Issue: Held: Whether the newspaper advertisement from the defendant was an offer. Affirmed.

Rule: A newspaper advertisement may constitute an offer, acceptance of which will consummate a contract and create an obligation in the offerer to perform according to the terms of the published offer. A newspaper advertisement to purchase bonds at par was an offer, rather than a mere proposal to negotiate, being complete and definite, and if ambiguous, construed against the offeror. The party proposing shall be presumed to continue in the intention, which his proposal expressed, if, one receiving the unqualified assent of him to whom the proposition is made, he does not signify the change of his intention. The Supreme Court held that acceptance of an advertised order completes the contract, which is not subject to further modification by either one of the parties without the consent of the other. Reason: The court held that the defendant was under an obligation to inform the plaintiff of any changes to the offer. As this was not in the contract, the contract is construed against the defendant. Dissent: advertisements are meant to be invitations to negotiate. North Central Utilities, Inc. v. Walker Community Water System, Inc. 506 So.2d 1325 (La. App. 2nd. Cir. 1987). This is an action for breach of contract. Action: Plaintiff filed suit alleging that defendant was a public entity and that plaintiff was low bidder. As such, plaintiff alleged that he should have been awarded the contract. Defendant filed an exception of no cause of action which was sustained by the trial court. This was reversed by the appellate court and remanded. Defendant then filed an MSJ which was sustained by the trial court. Plaintiff appealed. Facts: Defendant advertised for bids for a water distribution system. Plaintiff entered a bid, meeting all requirements outlined in the advertisement. Plaintiff was the low bidder, but did not get the contract. Plaintiff alleges that he should be awarded damages for loss of profits, and for expenses incurred. Issue: Whether the defendant's advertisement amounts to an offer such that the plaintiff's bid is an acceptance and completes the formulation of a contract. Held: Affirmed.

Rule: For any proposal to qualify as an offer, it must reflect the intent of the author to give to the other party the right to concluding the contract by assent. Where this intent is not present, the proposal cannot be considered an offer, but rather an invitation to negotiate or an expression of willingness to receive offers from others. Under common law, request for bids is not an offer, but an invitation to negotiate. Civil Law holds this as well.

Reason: The court held that defendants merely indicated an intent to sell, thus it does not constitute an offer to accept the highest bid.

Schulingkamp v. Aicklen FactsThe def sent an irrevocable offer to purchase some property of the pl, along w/ a promissory note. Pl sued to enforce offer. However, the pl did not respond for 36 days. Def sent a telegram withdrawing offer 5 days before the pl sent an acceptance. Pl feels that if her previous actions did not give implied acceptance, express acceptance was sent. Def argue that it was too late b/c the offer had been withdrawn. Pl counter argue that the offer was irrevocable through act of sale, thus def could not withdraw offer. IssueDoes an irrevocable offer expire after a reasonable time? HoldingYes ReasoningThe agreement provides that the offer remain irrevocable until the act of sale. Since the offer does not designated a specific time period for the act of sale, we conclude that it is an irrevocable offer w/I 1928. When the offeror manifests an intent to give the offeree a delay within which to accept, without specifying a time, the offer is irrevocable for a reasonable time. What determines reasonable time is to be determined under the facts and circumstances of the case. *In these circumstances, there was a reasonable period of time in which the pl could have accepted the offer. However, after 36 days the offer became unreasonable, thus making the offer revocable.
Meyers v. Burger King Corporation 618 So.2d 1123 (La. App. 4th. Cir. 1993). Action: Meyers, an employee of Parkway who was renovating a Burger King, sued Burger King when a menu board fell on him. BK third partied Parkway, Nationwide Indemnity (Parkway's umbrella) and Nationwide Mutual (Parkway's G.L. carrier). Burger King filed an MSJ which was granted. Parkway appealed. Facts: Meyers was working on a renovation job at a Burger King, which was being completed by his employer Parkway. A menu board fell on him at the job site, causing injuries. It is important to note that Parkway contractually agreed to insure BK against any claim arising from Parkway's operations, and to name BK as an additional insured on it's policy. Parkway alleged that because BK did not sign the contract until 54 days from the date Parkway signed it, there was no contract. Issue: Whether Parkway's offer to insure BK was irrevocable and whether it was accepted within the prescribed time. Held: Affirmed.

Rule: An offer that specifies a period of time for acceptance is irrevocable during that time period. When the offeror manifests an intent to give the offeree a delay within which to accept, without specifying a time, the offer is revocable for a reasonable time. An acceptance of an irrevocable offer is effective when received by the offeror. Reason: The court held that contract from Parkway was a quote which was in effect for "at least 45 days". The court believes that "at least" means it could be longer, thus it was irrevocable for a longer period. As it was signed just 9 days later, the court held that this was a reasonable period of time.

W.M. Heroman & Co., Inc. v. Saia Electric, Inc. 346 So.2d 827 (La. App. 1st Cir. 1977). This is an action for breach of contract. Action: Plaintiff brought this suit against defendant after defendant refused to perform work they had agreed to in a construction project. The trial court held in favor of the plaintiff and the defendant appealed. Facts: Plaintiff sought to obtain bids for reconstruction of Capital House hotel in Baton Rouge. Defendant contacted plaintiff in order to bid on the electrical work for the job. On 5-1773, defendant submitted a bid of 335,125.00. However, the overall price of the project exceeding the amount to be spent on the project so the plans were modified. During a meeting in September of 1973, plaintiff met with defendant and other subcontractors to finalize bids. Defendant then bid 214,600.00 based on the modified plans. Three months later, plaintiff entered into a contract to complete the construction of the hotel. During the three month period, it was alleged that defendant was aware that the project was moving forward. Once informed that the job had been awarded to plaintiff, and by extension, the defendant, defendant picked up the plans. About a month later, defendant submitted a new bid of 396,305.00. When plaintiff objected, defendant reduced their bid to 269,000.00. Although unacceptable to the plaintiff, he continued to attempt to negotiate with defendant but was not successful. Due to time constraints, plaintiff hired an alternate subcontractor on a cost plus basis. That job amounted to 310,180.23. Plaintiff sued for the difference between this amount and defendant's original bid. Issue: Held: Whether defendant's offer to complete the project was a valid offer. Affirmed.

Rule: The contract, consisting of a proposition and the consent to it, the agreement is incomplete until the acceptance of the person to whom it is proposed. If he, who proposes, should before that consent is given, change his intention on the subject, the concurrence of the two wills is wanting and there is no contract. An offer, under certain circumstances, may remain irrevocable until the offeree is afforded reasonable time to accept. Reason: The court held that defendant's offer was irrevocable until either rejected or the project had been abandoned, provided an unreasonable time had no elapsed. In this case,

three months did elapse but based upon the substantial nature of the project and the fact that the evidence supported all parties proceeding as if the project were moving forward, the court held that this was not an unreasonable time. As such, defendant is bound to the offer. Since defendant refused to complete the work, plaintiff was forced to find an alternate vendor, who required a much higher price for the work.
GLOVER V. ABNEY P. 62 YOUNGBLOOD V ROSEDALE DEVELOP CO P. 71 Ryder v. Frost 3 La. Ann. 523 (1848). This is an action for breach of contract. Action: Ryder sued Frost to recover $500. The trial court held in favor of defendant and the plaintiff appealed. Facts: Ryder and Frost were business partners in Illinois. Their business failed and they dissolved the company. In 1841, Ryder attempted to settle all of the affairs of the company, and took all of the assets. At that time, Ryder gave Frost a bond of indemnity to hold him harmless against all of the partnership debts. One of the debts included a $6000 to Leavitt of New York that was never paid. In 1843, Leavitt sued the business and obtained a judgment for the $6000, but Leavitt later agreed to accept $2000 as full payment of the debt. Ryder sent a letter to Frost requesting Frost pay $1000 toward the debt. Frost replied in writing and stated that he will not give $1000, but would give $500 once the settlement with the Leavitts was completed and erased from the court record. Additionally, Frost indicated that once his partner returned, he would visit Ryder and would pay him the $500 if Ryder desired. Some 6 weeks later, Ryder resolved the judgment with Leavitt. Issue: Whether Ryder gave his assent to Frost's proposition within a reasonable time. Whether earlier notice of acceptance should have been given. Reversed.

Held:

Rule: It is not indispensible that the consent should be express. It may be implied. An implied consent may be manifested by actions. (acceptance by performance) Reason: The court held that Ryder unequivocally manifested his consent based on his following through with the negotiation of the judgment. Frost had indicated that he wished for the judgment to be resolved, and for that being accomplished, offered to pay Ryder $500. Although Frost appears to have made the argument that his offer was not accepted timely, the court disagreed. As noted above, the judgment was resolved about 6 weeks after Frost's offer. Further, the court did not believe that Frost was damaged by any sort of delay. Additionally, there was nothing in Frost's letter that Ryder should have to accept the offer within a specified time. As such, the actions of Ryder were his acceptance and judgment should be made in favor of Ryder. Cardinal Whoesale Supply, Inc. v. Chaisson 504 So.2d 167 (La. App. 3rd Cir. (1987). This is an action for breach of contract.

Action: Plaintiff brought this action to attempt to enforce guarantees for a loan. The trial court held in favor of the defendant and the plaintiff appealed. Facts: Defendant's company needed to get credit for business purchases from plaintiff. Two coowners of defendant's company signed personal guarantees in favor of plaintiff. The credit application was refused but the plaintiff held on to the guarantees without signing them. Two years later, the two coowners sold their share of the business. Defendant then obtained credit from plaintiff. Eight years after the guarantees were signed, the company became insolvent. Plaintiff then signed the guarantees and attempted to enforce them upon the two prior co-owners for payment of defendant's debt. Issue: Held: Rule: Whether personal guarantee of credit can be bound in perpetuity. Affirmed. There can be no contract without an offer an acceptance.

Reason: The court held that there was no acceptance of the guarantees that would have completed the contract between the parties. Although the two co-owners waived notice of the creditor's acceptance, the court believed it was obvious that the extension of credit would have been made either at that time, or in the near future. However, there was no credit contract set up at that time. The fact that plaintiff held these documents for 8 years indicates that plaintiff did not accept them for the purpose for which they were intended. Further, plaintiff agreed to credit for defendant after the two guarantors sold their shares of the company. As such, the contract was with defendant, and not with the two co-owners. Further, the guarantees were not valid in perpetuity. Ambrose v. M&M Dodge, Inc. 509 So.2d 444 (La. App. 3rd Cir. (1987). This is an action for breach of contract. Action: Plaintiff sued defendant because his truck did not work properly. The parties reached a settlement. While the settlement documents had been signed by plaintiff, but not yet mailed back, plaintiff learned that defendant would not pay off his loan. Plaintiff announced there was no deal and cancelled the signatures. Defendant alleged that it was res judicata, and filed an exception for same. The trial court overruled this exception and the defendant appealed. Facts: Same as history.

Issue: Whether the claim was subject to an exception of res judicata because the plaintiff signed the documents. Held: Affirmed.

Rule: A written acceptance is received when it comes into the possession of the addressee or of a person authorized by him to receive it, or when it is deposited in a place the addressee has indicated is the place for this or similar communications to be deposited for him. According to the reception theory, the acceptance of an offer takes place at the moment its communication reaches the offeror.

Reason: The court held that in this case, the acceptance had to be in writing. As it would have had to have been received by defendant to be valid, it was not valid as it was not received. Even though the signatures were placed on the documents, they were still in possession of the plaintiff, thus the settlement was not valid. Ever-tite Roofing Corp. v. Green 83 So.2d 449 (La. App. 2nd Cir. (1955). This is an action for breach of contract. Action: Plaintiff brought suit for breach of contract. Defendants denied that the contract was accepted by plaintiff. The trial court sustained defendant's argument and dismissed the suit. Plaintiff appealed. Facts: Defendant's signed a contract for plaintiff to re-roof his residence. This was done on 610-53. This set out the work in detail, and indicated that the price was to be paid in installments. A salesman of plaintiff also signed the document but the salesman was apparently without authority to accept the contract on behalf of the plaintiff. The contract stated that it would become effective with an acceptance of plaintiff or upon commencing performance of the work. The contract also indicated plaintiff's address. As part of the contract, plaintiff had to check defendant's credit. This credit check was done the day after the contract was signed. The lender then approved the financing on either 6-18 or 619. The next day, plaintiff obtained all materials and went to defendant's residence to do the work. Upon their arrival, plaintiff saw that defendant had employed another company to perform the work. Defendant advised the plaintiff that they retained the alternate vendor two days prior, and that plaintiff's services were not needed. Issue: Held: Whether plaintiff had accepted the terms of the contract. Reversed.

Rule: An offer proposes may be withdrawn before its acceptance and that no obligation is incurred thereby. The power to create a contract by acceptance of an offer terminates at the time specified in the offer, or, if no time is specified, at the end of a reasonable time. What is reasonable time is a question of fact depending on the nature of the contract proposed, the usages of business and other circumstances of the case which the offeree at the time of his acceptance either knows or has reason to know. An offer is incomplete as a contract until its acceptance and that before its acceptance the offer may be withdrawn. Reason: The court noted that plaintiff, upon receiving the signed contract, immediately began making preparations to complete the job. They checked the credit, obtained financing and acquired the materials. All of this was done in roughly 8-9 days. Defendants never contacted plaintiff to notify them of their intent not to have plaintiff perform the work. Since the contract indicated that acceptance was affected when the work began, and did not specify when the work was to begin, the court had to determine a reasonable time. As plaintiff clearly began taking steps just days after the contract, the court held that this was a reasonable time, and that judgment should be in favor of plaintiff. NATIONAL CO. V NAVARRO P. 91

Rodrigue v. Gebhardt 416 So.2d 160 (La. App. 4th Cir. (1982). This is an action for breach of contract. Action: Plaintiff brought this suit against defendant for breach of contract. The trial court found that the contract was perfected and breached by defendant. Defendant appealed. Facts: Plaintiff put his house up for sale. In a written agreement, defendant offered to pay 100K for the house with a deposit of 1K in cash and a 9K demand note. Plaintiff rejected this, and made a counter offer of 105K with a deposit of 5K in cash and 5500 in a demand note, with each party to share discount points not to exceed three. This counter was to remain open until noon on 1-31-80. At 1:15pm on 1-31-80, defendant sent another offer via wire. That offer stated that defendant accepted agreement to purchase the home for 105K. However, he indicated a deposit of 2K in cash and 8500 on demand note. Further, each seller was to pay one point. Defendant later refused to tender the deposit and the plaintiff filed suit. Issue: Held: Rule: Whether there was an acceptance of the offer. Reversed.

For a contract to be formed, the acceptance must be in all things conformable to the offer. An offer must be accepted as made to constitute a contract. A modification in the acceptance of an offer constitutes a new offer which must be accepted in order to become a binding contract. Reason: The court held that the plaintiff had to have accepted defendant's new offer for it to become binding. There was no evidence that this offer was accepted. Further, a contract to purchase realty must be in writing. As this was not the case, the court held in favor of defendant.

Breaux Bros. Construction Co. v. Associated Contractors, Inc. 226 La. 720, 77 So.2d 17 (1954). This is an action for breach of contract. Action: Plaintiff brought this suit against defendant for breach of an oral contract between the parties. The trial court held in favor of defendant and plaintiff appealed. Facts: The Lafourche Police Jury was soliciting bids for excavation and removal of a large amount of dirt. This job entailed doing both dry land work and water work. Defendant was contemplating bidding on this job. On 3-4-51, two officers of defendant corporation looked at the proposed job site. On their way home, they met Breaux, who was a member of the plaintiff partnership. As defendant did not have equipment to do the water work, Breaux indicated that he had that equipment and would be interested in subcontracting this work. The parties reviewed the plans that same day. Breaux indicated that the portion of the work that plaintiff would do was agreed upon at that time. However, defendant denied this took place. There was to be a subsequent meeting of the parties on 3-1451. At the second meeting, plaintiff indicated that defendant's discussed the amount of their bid for the job. Breaux indicated that they would submit a bid of $.1569 for each yard of dirt. Further, Breaux stated that plaintiff would accept that same amount for all dirt moved by them. It is at this point

that Breaux believed he had a finalized contract with defendant. Defendants denied there was a firm price agreed upon. Allegedly, Breaux had no knowledge of defendant's bid until it was opened and accepted. Breaux then said he wanted the same amount. Defendant's then asked if Breaux would split the bonding costs, which Breaux declined to do. Negotiations terminated at this point. There was testimony at trial from Breaux who admitted he thought that they would eventually sign a written contract for them to perform the work. Issue: Held: Whether there was a valid contract entered into by the plaintiff and the defendant. Affirmed.

Rule: Where it has been agreed between parties that an agreement shall be reduced to writing, the contract is not complete until it is written and signed by all the parties. It is elementary in our law, that where the negotiations contemplate and provide that there shall be a contract in writing, neither party is bound until the writing is perfected and signed. The distinction is manifest between those cases in which there is a complete verbal contract, which the law does not require to be reduced to writing, and a subsequent agreement that it shall be reduced to writing, and those in which, as in this case, it is a part of the bargain that the contract shall be reduced to writing. Reason: The court held that in this case, the parties intended from the very beginning to reduce their negotiations to a written contract. As such, neither party was bound until the contract was written and signed by both parties. As this did not take place, there was no contract and the judgment was appealed. Barchus v. Johnson 151 La. 985, 92 So. 566 (1922). This is an action for breach of contract. Action: Plaintiff sued defendant for specific performance of a contract. Defendant filed a no cause of action which was sustained. Plaintiff appealed. Facts: On 8-21-17, plaintiff bought an option to purchase some property. For $50, he had the option for 30 days. On 9-15-17, plaintiff telephoned the defendant to accept. On 9-28-17, plaintiff then wrote defendant, and accepted the option. This was beyond the 30 day period. Issue: Whether plaintiff's acceptance of the contract to purchase immovable property by telephone was valid. Held: Rule: writing. Affirmed. All contracts relative to the transfer of immovable property must be in

It is apparent that an option to buy or not to buy immovable property must be evidenced by a written instrument, that the acceptance of the offer made in such instrument must be equally evidenced by writing, and that it must be tendered to the proposer before the time limited in the option has expired. Reason: The court held that according to the plaintiff, he only tendered his acceptance on 9-28-17, which was 8 days after the expiration of the time within which the proposer had agreed to become bound by the acceptance. This was too late.

Spanier v. De Voe
52 La. Ann. 581, 27 So. 174 (1900)

Facts 1. Action was brought by Spanier for the purpose of annulling an act of conveyance of immovable property in Shreveport. 2. Plaintiff avers that defendants claimed to have acquired the property by deed dated May 20, 1880 3. Plaintiff further avers that it is entirely without consideration and that the document was not passed before a notary and 2 witnesses. 4. The deed was signed by 3 witnesses and a commissioner from Louisiana. 5. Testimony was allowed during the trial court phase to counter that the deed was an authentic act and not a private one. 6. The trial court held that the donation in question is null and void, and entered judgment for the plaintiff as owner of said property. Issue 1. Whether the deed was signed under private signature or authentic act? 2. Was there proper cause (consideration) for the sell of the land? 3. Did the transfer of immovable property qualify as an actual sale or a donation?

Rule: Art. 2464 the price should not be out of proportion with the value of the thing for an act of sale.
SECTION 2--OF THE FORM OF DONATIONS INTER VIVOS Art. 1536. Donation of immovables or incorporeals, form required. An act shall be passed before a notary public and two witnesses of every donation inter vivos of immovable property or incorporeal things, such as rents, credits, rights or actions, under the penalty of nullity. Holding The transfer of immovable property was done under a donation inter vivos, and was disguised as a sale. There was no proper cause for the sale, and the donation is null for lack of form (no authentic act). Dont need consideration in civilian law.

Succession of Lawrence
650 So.2d 398 (La.App. 3 Cir. 1995)

Facts

1. Decedent had expressed during his life the intention of donating the monies that he had deposited in a joint account to his nephew. 2. Upon the death of the decedent, the other heirs contested the validity of the donation. Procedural: TC- found for Jones the recipient of remunerative and onerous donations during the lifetime of Lawrence, therefore the owner of the money. (looked at the services that were rendered for Lawrence by Jones over his lifetime.) Appeal Court reversed and said there was no donation inter vivos for lack of proof of ownership of the money, and lacked formalities. Issue Whether the transfer of the money in the accounts were donations inter vivos or donations mortis causa? Rule: Art. 1524- defines onerous and remunerative donations Art. 1526- onerous and remunerative are not subject to the rules and peculiars of donations inter vivos, except when the value of the object given exceeds by one-half that of the charges or of the services. Holding The transfer of the money was a donation inter vivos because it constituted an inter vivos remunerative and onerous donation. Jones had performed work for Lawrence and Lawrence wanted to repay him for his work. Reasoning: The value of the bank accounts did not exceed one-half that of the services that Jones rendered to Lawrence over his lifetime, The rules of donative inter vivos do not apply in this case.
Perry Jr. v. Perry Sr. 507 So.2d 881 (La. App. 4th Cir. 1987). This is an action to enjoin execution of a prior judgment. Action: Perry Sr filed for a preliminary injunction against the seizure of property alleging that they wanted as compensation against their judgment, various donations they made to their son. The district court enjoined the execution of the judgment pending a hearing to determine the value of the donations to be offset against the judgment. Perry Jr appealed. Facts: The parties are father and son. The father was a part owner of Ogden-Perry Theatres. Over a period of years, the father gave the son a large amount of stock in the company. When the son became an attorney, the father signed a written guarantee, prepared by the son, by which the company would buy back the shares of stock. There was an initial payment of 150K, followed by what was to be monthly payments of 5K each. About 7 years later, due to financial difficulties, the company ceased making payments and filed for bankruptcy. The son then sued his father as guarantor on the contract and received a judgment in his favor in the amount of $163,249.28.

When the son was unable to collect on the judgment, he had the sheriff seize property from his parent's home including jewelry, appliances and furniture. During the seizure the mother fainted and required medical attention. Issue: Held: Whether donations can be revoked and utilized to offset a judgment debt. Affirmed.

Rule: Injunctive relief may issue prohibiting the sale of property seized under writ of fiere facias when subsequent to judgment, compensation has taken place. Art 2298. Although the obligation claimed in compensation is unliquidated, the court can declare compensation as to that part of the obligation that is susceptible of prompt and easy liquidation Art 1902. Revocation on account of ingratitude can take place if the donee has been guilty towards the donor of cruel treatment, crimes or grievous injuries. Art 1560. Reason: In this case, the court held that the son having directed the sheriff to seize his parents property constituted cruel treatment or grievous injury within the meaning of the code article. As such, the trial court was affirmed. Thielman v. Gahlman 119 La. 350, 44 So. 123 (1907). This is an action to recover real estate. Action: Plaintiff, alleged to be an heir of Gahlman, brought an action to recover a one-fifth interest in some real estate formerly owned by Gahlman. The trial court held in favor of defendant, recognizing defendant as owner of the property. Plaintiff appealed. Facts: Gahlman advised his nephew that in exchange for some property, Gahlman wanted the nephew to care for him for the rest of his life and bury him, when dead, with the condition that the uncle could still collect and enjoy the revenue of the property. A document was signed shortly thereafter, giving the property to the nephew. A few months later, Gahlman died. However, the nephew had cared for him and paid his expenses during his illness, and also buried him after his death. Issue: Whether the contract is not valid as a sale due to uncertainty of price. Whether the contract is not valid as a donation inter vivos as there was no acceptance or delivery of the property and that the grantor retained the usufruct. Held: Affirmed.

Rule: The donation shall, in no case, divest the donor of all his property; he must reserve for himself enough for his subsistence. If the cause expressed in the consideration should be one that does not exist, yet, the contract cannot be invalidated if the party can show the existence of a true and sufficient consideration. Contracts whereby individuals have transferred property to others, burdened with the charge that they should be maintained during their lives, have heretofore been dealt with as onerous donations.

Reason: The court held that it was entirely competent for Gahlman to convey the property to his nephew in consideration of the obligation which the latter was shown to have assumed, i.e. furnishing the uncle with a home and caring for him. As far as the payment of $1, the court held that although it would have been insufficient under the law, the defendant has shown the existence of a true and sufficient consideration by caring for the uncle. Based on this, the judgment was affirmed.

Louisiana College v. Keller


10 La. 164 (1836)

Facts 1. This was an action instituted by the trustees of the Louisiana College, established at Jackson, to recover from the defendant the sum of five hundred dollars, the amount of his subscription to said college. 2. The writing in question set forth an agreement in which individuals pledged to pay a sum of money to help establish the college if it were established by the Legislature in Jackson, East Feliciana. The document clearly stated, expressly understood that no obligation is hereby created against the subscribers, unless the said Legislature do establish a college with an endowment, in the said town, at their next session. 3. On February 18, 1825, the Legislature passed a law to incorporate Louisiana College in Jackson, East Feliciana. 4. The defendant having failed and refused to pay his said subscription, on the 18th of March, 1832, a formal demand was made on him and a protest entered on instrument by the parish judge, acting as notary public for the non-payment. 5. The defendant pleaded a general denialthat he should not be bound by the writing, and he claimed it to be a nudum pactum (naked promise) that was given without consideration. He further pleads the prescription of 5 years and that the writing has lapsed. 6. DC rendered judgment in favor of Louisiana College, and the defendant appealed. 7. Plaintiff contends that when the Legislature passed the act establishing the college, the obligation of the defendant then became absolute. 8. Defendant contends that (1) the writing was imperfect in obligation and could not be enforced by the courts; (2) It was without legal and sufficient consideration to render it valid and binding; (3) It did not become binding on the maker, for want of acceptance of its conditions by the party to whom it was made; and (4) There was no party in existence capable of accepting or enforcing its conditions. Issue Whether the writing (agreement) had cause that created an obligation for defendant to pay his promised sum? Holding Yes, the writing was freely consented to, which allowed for cause, and created an obligation for defendant to pay the promised sum to Plaintiff. The obligation was subject to only one

Rules 1. An obligation according to the Code is not the less binding, though its consideration or cause is not expressed. 2. In contracts of beneficence, the intention to confer a benefit is a sufficient consideration. Baptist Hospital v. Cappel
129 So. 425 (La. App. 2d Cir. 1930)

Facts: 1. Baptist Hospital instituted this suit against Dr. J. T. Cappel for payment of a pledge he made towards the construction of a new nurses home for the students of the Nurses Training School. 2. Baptist Hospital decided to put on a campaign to raise funds by appealing to the generosity of the citizens of Alexandria and surrounding communities. 3. Dr. J. T. Cappel signed a pledge card for $500, to be paid in 4 installments of $125 each. He paid the first installment and refused to pay the remaining 3. 4. Cappel insists that because the hospital was required to move the location of the new nurses home, some 2 miles away from the hospital, that the pledge was without consideration and charged error and fraud. Cappel further contends that he is relieved from paying his pledge for the reason that the home was not building within the time it was represented to be built, that the home was built in a different location than originally planned; and that the time in which it was to be completed are such as to relieve him from liability. 5. DC rendered judgment in favor of plaintiff and defendant appealed. Issue Whether or not the acts of the Baptist Hospital have been such, since the signing of the pledge card, to relieve the defendant of liability? Holding No, the acts of the Baptist Hospital have not been such as to relieve the defendant of liability. Reasoning It was necessary to secure another location, and the duty of deciding on that location was upon the board of trustees of the hospital and not upon the subscribers. There is no merit in defendants contention that the home was not completed within the time represented to him. Defendant does not show that any benefit he expected to receive from the new nurses home has been in any way lessened or that he has been in any way injured by the change in plans; therefore he is bound by his pledge.

Flood v. Thomas
5 Mart. (N.S.) 560 (La. 1827)

Facts 1. 2. 3. 4. Defendant is sued on his promise to pay $678.71, due to the plaintiff by Lee. Defendant pleaded want of consideration in the alleged promise. Judgment was rendered in Defendants favor, and plaintiff appealed. Lee admitted the debt due by him to be about $500, but deposed he neither recollected nor believed the account was presented him by Sprigg.

Issue Whether there was sufficient cause which required defendant to pay remaining balance to plaintiff? Holding Yes, there was sufficient cause which required defendant to pay remaining balance. Rule The debt of another is sufficient consideration to support a contract of surety, or a promise to pay it. DOrgenoy v. Droz
13 La. 382 (1839)

Facts 1. Plaintiffs ancestor and Ramis entered into an agreement, notarial act, in which plaintiff purchased some land from Ramis, for what must have been an outrageous price in its time (1807). 2. Decendents of Ramis sold the land to defendant in 1836.

3. Defendant advertised the sale of the land. 4. Plaintiffs contended that they were the true title holders. 5. Heirs of Ramis contend that she received the land as inheritance from her father, and that the land had never been legally vested to Plaintiffs. 6. DC rendered judgment in favor of plaintiffs as the rightful owners, and defendant appealed. Issue Whether the instrument was one of sale or donation? If it were a sale, was there sufficient cause? If there was not sufficient cause, was it a donation? Holding The court held that the instrument was one of donation. Reasoning The donation, as long as it existed, is conclusive against the pretensions of the defendant; and unless it had been set aside and rescinded, in an action instituted for that purpose, the defendant had no right to disregard it, by attempting, as he has done, to sell the property which the plaintiffs possessed under it.

United States Fidelity & Guaranty Co. v. Crais


127 So. 414 (La. App. Orl. Cir. 1930)

Facts 1. Plaintiff and Canal Commercial Trust and Savings Bank of New Orleans had a contract in which plaintiff agreed to cover the bank against any losses resulting from embezzlement by its employees. 2. Bank Manager, Johnson, embezzled some $30,000 plus from the bank and devised a plan to ease out. He gathered his friends to sign an agreement, which stated that they would cover the excess losses to the insurer in the event that Johnsons liquidated assets would not cover the debt owed to Plaintiff. 3. Johnsons friends said that they would sign the document if it insured that Johnson would not face criminal charges for his actions. USF&G said that it was not up to them, but up to the District Attorney as to whether or not Johnson would face criminal charges. Friends signed the document anyway. 4. The friends, including the defendant, refused payment of the $500. 5. Plaintiff sues defendant for $500 on a contract alleged to have been entered into between the parties. 6. Defendant admitted his signature, but denied liability for want of valid or legal consideration.

7. Plaintiff concedes that a contract for restitution, supported only by the consideration not to criminally prosecute for embezzlement, is against public policy and is illegal, null, and void, but contends that the contract between itself and Canal was one of suretyship and that, upon payment of the loss to the bank, the surety was subrogated by law to the rights of the bank against the embezzler, and therefore, had the right to enter into any agreements for the settlement of its civil losses with Johnson and his friends, and hence the agreement was supported by a valid consideration. 8. DC granted judgment in favor of USF&G, and defendant appealed. Issue Whether or not the contract is supported by a valid consideration? Holding No, the contract is not supported by a valid consideration. Reasoning It is obvious that the defendant did not secure any benefit from this contract. It is likewise clear that Johnson did not secure any benefit from it, unless it could be said that he was not criminally prosecuted, but such a consideration would be contra bonos mores1, and therefore the contract would be invalid. The record shows that Johnson was not discharged or released from his obligation or any part of it when the defendant signed the contract sued upon, and hence plaintiff did not surrender any legal right which it might have had against Johnson. If plaintiff had released Johnson, then the situation might be different. Dissent: The surety company could have refused to settle with the assured for Johnsons shortages until receipt by it of full proof in the usual form. He thought full legal consideration was given and received.
Carpenter v. Williams 428 So.2d 1314 (La. App. 3d Cir. 1983). This is an action for breach of contract. Action: Plaintiff brought this suit to enforce defendant's specific performance of a contract to buy plaintiff's home. Defendant reconvened to obtain a refund of his deposit. The trial court held in favor of defendant and the plaintiff appealed. Facts: Defendant lived in Lafayette and drove to Cameron to work for his employer, Transco. The employer ordered defendant to move closer to his work. Defendant contracted to purchase plaintiff's house, in order to comply with his employer's wishes. Later, Transco rescinded its order, and defendant refused to purchase plaintiff's house.

Lat. against good morals Offensive to the conscience and to a sense of justice; voidable contracts

Issue: Whether the termination of defendant's cause to enter into the contract would make the contract null and void. Held: Affirmed.

Rule: Errors may exist as to all circumstances and facts which relate to a contract, but it is not every error that will invalidate it. To have that effect, the error must be in some point, which was a principal cause for making the contract, and it may be either as to the motive for making the contract, to the person with whom it is made, or to the subject matter of the contract itself. La C.C. Art. 1823. Reason: The court held that the only cause Williams had to by the plaintiff's house was the order of his employer. Apparently, the plaintiff was aware of this. Thus, when Transco rescinded its order, the defendant's cause of entering into the contract ceased to exist, and the contract became unenforceable. Losecco v. Gregory 108 La. 648, 32 So. 985 (1901). This is an action for return of consideration due to a null contract. Action: Plaintiff filed suit against defendant, seeking to recover $4000 he had paid defendant for an orange crop. The trial court held in favor of plaintiff and defendant appealed. Facts: Plaintiff contracted to buy the orange crops of defendant. Per the contract, the plaintiff would pay $4K for the crops of 1899, and $4K for the crops of 1900. The contract indicated that purchaser assumes all risks. Three months later, the temperature in New Orleans dropped to 7 degrees above zero, destroying the orchard. Plaintiff alleged that due to the destruction of the trees, there was no crop for him to buy, thus defendant owed the $4K back to plaintiff. Issue: Held: Was this an aleatory (dependant on uncertain contingencies) contract? Affirmed.

Rule: A contract is aleatory or hazardous when the performance of that which is one of its objects depends on an uncertain event. It is certain when the thing to be done is supposed to depend on the will of the party, or when in the usual course of events it must happen in the manner stipulated. If, during the lease, the thing be totally destroyed by an unforeseen event.the lease is at an end. Reason: The court held that the contract called for the sale of the crops, not the trees. As the trees were destroyed, they did not yield a crop, thus no contract. Further, the severe cold weather was an extraordinary event, as the weather had not been that cold for in excess of 60 years. As it was so unlikely for this weather to exist, it was likely not considered in the formation of the contract. As such, it was not an aleatory contract, but was a certain contract. The case then went up on rehearing. On rehearing the court put more emphasis on the fact that the contract said that plaintiff assumes all risks. They interpreted this to mean that the purchaser, knowing that the crop might never materialize, paid cash, unconditionally, for the crop. By assuming all risks, that means he also assumed the risk of total failure. Based on the rehearing, the court reversed, ordering the plaintiff to pay the $4K.

Notes on rehearing: the purchaser was in the habit of buying orange crops in advance on a speculation, and that not infrequently these crops had perished in cold weather. The purchaser prepaid without a word for its return on any contingency. The dissent thinks he assumed the risk.
Lamy v. Will 140 So.2d 794 (La. App. 4th Cir. 1962). This is an action for breach of contract. Action: Plaintiff sued defendant over a check for $135 that was not honored. The trial court held in favor of plaintiff and the defendant appealed. Facts: Plaintiff and defendant, who were friends, met after work at a bar to play "poker dice." During the course of the night, defendant lost all of his money, and asked plaintiff for loans on numerous occasions. Plaintiff, through six separate loans, loaned defendant $150, having received a check from defendant for that amount. When the game finally ended, plaintiff was broke. Defendant had since won back his money. The next day, defendant gave plaintiff $15, took back his check for $150, and gave plaintiff a new check for $135. Plaintiff then attempted to cash the check, but payment on the check was refused by the bank. Issue: Whether the amount claimed by plaintiff is a gambling debt and therefore uncollectible by court action. Held: Reversed.

Rule: The law grants no action for the payment of what has been won at gaming or by a bet, except for games tending to promote skill in the use of arms, such as the exercise of the gun and foot, horse, and chariot racing. An obligation without cause, or with a false or unlawful cause, can have no effect. The cause is unlawful, when it is forbidden by law, when it is contra bonos mores (contrary to moral conduct) or to public order. Reason: The court held that the plaintiff, in order to collect, must have been wholly unconnected with the gambling activity. As plaintiff was a participant in the game, the transaction was part of the activity, thus plaintiff is precluded from maintaining an action for recovery.

To be a constitutionally prohibited gambling contract, however, there must be a mutual illegal intent to gamble and the intent of one party not communicated to or concurred in by the other will not nullify an agreement.
Lauer v. Catalanotto 522 So.2d 656 (La. App. 5th Cir. 1988). This is an action for breach of contract. Action: Plaintiff sued defendant to enforce a contract. Defendant reconvened for repayment of a loan of $1300 made to plaintiff. The trial court held in favor of the defendant and the plaintiff appealed.

Facts: Plaintiff alleged that he entered into a contract with the defendant where plaintiff would give defendant $10,000 to engage in gambling in Vegas. They were to share the profits. Defendant and another witness testified that plaintiff asked to borrow $1300 from defendant as they were going to leave the hotel. Apparently, plaintiff immediately went to the blackjack table where he quickly lost the money. Plaintiff admitted borrowing the money to play dice, but claimed he signed a marker to the hotel for that amount. He alleged that defendant was standing right behind him when he asked for the money. Issue: prohibited. Held: Whether plaintiffs cause of action for recovery of gambling debts is specifically

Affirmed.

Rule: The law grants no action for the payment of what has been won at gaming or by a bet, except for games tending to promote skill in the use of arms, such as the exercise of the gun and foot, horse and chariot racing. And as to such games, the judge may reject the demand, when the sum appears to him excessive. Courts have sometimes refused to enforce payment of loans made by a third party to a gambler, where the loan is clearly for the purpose of gambling or repaying a gambling debt and the lender was not an innocent bystander. Reason: The court held that plaintiff simply asked the defendant for the money; defendant was not involved in the transaction for which plaintiff had requested the money (whether it was to repay the marker or play blackjack). Although plaintiff states there was nor formal indication of the loan, the court held that the friendship of the parties makes such an informal loan very credible. As such, the court found no manifest error. McMahon v. Hardin 121 So. 678 (La. App. Orl. Cir. 1929). This is an action for breach of contract. Action: Plaintiff brought this suit against defendants, who were husband and wife, to enforce a contract for him to paid for services rendered. The trial court held that the contract was unenforceable as it was against public policy. The plaintiff appealed. Facts: Plaintiff, who was a private detective, sued the defendants for breach of contract. Plaintiff was hired by the wife to obtain evidence of the husbands adultery. At first, he was unsuccessful, and the wife sued for separation on the grounds of cruelty. She then abandoned this suit. Nine months later, the wife again sued the husband as she received satisfactory evidence of her husbands adultery from the plaintiff. The defendants were then divorced, and were granted a separation of property. Plaintiff apparently was never paid. He sued the wife since she was the one who hired him. He sued the husband because he was the head and master of the former community of the defendants, and was responsible for expenses of wife obtaining the divorce. Issue: Held: Whether a contract of this kind is enforceable and not repugnant to public policy. Affirmed.

Rule: Contracts to pay for collecting or procuring testimony to be used in evidence, coupled with the condition that the contractees right to compensation depends on the character

of the testimony procured or upon the result of the suit in which it is to be used, have been universally, condemned by the courts as contrary to public policy, for the reason that such agreements hold out an inducement to commit fraud or procure persons to commit perjury.
Reason: The court held that they must look with a kind eye upon the institution of matrimony. In doing so, this type of contract must be against public policy as it would encourage individuals to attempt to destroy something that was intended to be permanent. Gravier's Curator v. Carraby's Executor 17 La. 118 (1841). This is an action to recover payment for services rendered. Action: Plaintiff, the curator of the estate of Gravior, sued the defendant seeking to be compensated by defendant for the value of property sold by them to the detriment of Gravier. The trial court made a monetary award to the plaintiff and the defendant appealed. The defendant then filed an exception that the action of the plaintiff could not be maintained because the contract was fraudulent, illegal and against public policy. Facts: The plaintiff, curator of the estate of Gravier, indicated that Gravier made some simulated sales of property to Carraby. Gravier was pressed for money and was facing several judgments. Rather than have the land seized by creditors, he made a scheme with Carraby that would transfer the land to him, but Gravier would still actually be the owner. Eventually, Gravier abandoned his affairs as being hopeless, and did not let it be known that he owned that property. In 1826, Carraby died and his brother believed that the land was actually owned by Carraby. Most of this property was then sold. Issue: Whether the plaintiff had a cause of action against defendant since simulated sales of land to the defendant were fraudulent. Held: The exception was sustained.

Rule: No principle is better settled, than that no action can be maintained on a contract the consideration of which is either wicked in itself or prohibited by law. How far this principle is to affect subsequent or collateral contracts the direct and immediate consideration of which is not immoral or illegal, is a question of considerable intricacy, on which many controversies have arisen and many decisions have been made.
Reason: The court held that the defendants were made to appear to the world as the owner's of the property, thus the creditors of the plaintiff were unable to seize the land. As the intent of the parties was fraudulent, the court held that the exception should be sustained. Herbert v. McGuire 447 So.2d 64 (La. App. 4th. Cir. 1984). This is an action to recover payment for services rendered. Action: Plaintiff, who was a physician, sued the defendant, who was one of his patients, to recover the cost of a surgery. The trial court dismissed the case and the plaintiff appeals.

Facts: Plaintiff performed a surgery upon the defendant for a fee of $900. According to the defendant, the plaintiff was to file her insurance claim in order for it to be paid by her carrier. Because plaintiff failed to do this, the insurer refused to pay it at a later date. Issue: Held: Whether defendant is entitled to a defense of detrimental reliance. Reversed in part. Judgment for plaintiff for $155.

Rule: If the promise came before the surgery, it was part of an enforceable contract. If the promise came after the surgery was incurred, it would be a clearer case of a gratuitous promise, as to which estoppel would reasonably apply.
Reason: The court held that the trial judge was not manifestly erroneous in concluding that plaintiffs breach of promise by plaintiffs employee to take care of the insurance claim caused defendant to suffer the loss of the insurance benefit. However, the defendant only lost the benefits of what her insurance would have paid. She was still required to pay 20% of the amount, less a $25 credit. Edinburgh v. Edinburgh 523 So.2d 893 (La. App. 4th. Cir. 1988). This is an action to recover payment for services rendered. Action: The wife sued the husband to quiet her title (make secure by freeing from dispute/litigation in the house. The husband reconvened for the value of the services rendered during the marriage based on the owner's promise that the husband would become owner of a one-half interest in the house. The trial court held in favor of plaintiff and the defendant appealed. Facts: Plaintiff (wife) and defendant (husband) entered into an agreement with a homeowner named Dorsey. Dorsey's house was badly damaged by Hurricane Betsy. Per the agreement, the couple would repair the house and pay the mortgage. In return, Dorsey would leave the house the couple upon her death. Defendant performed the repairs on the house, and paid the mortgage. However, the couple was then divorced. After Dorsey's death, she left the house to the plaintiff only Issue: Whether the husband has a claim under detrimental reliance.

Held: Yes. Reversed in part. Husband entitled to recover money he spent on the house upon reliance of Dorsey's promise.

Rule: In order to recover under the theory of detrimental reliance, a plaintiff must prove that: (1) a representation was made; (2) justifiable reliance upon that representation; and (3) a change in position of one's detriment because of the reliance.
Reason: The court held that the defendant met the requirements to recover under detrimental reliance. Based on Dorsey's promise to leave he and his wife the house, which was reduced to writing, he assumed certain responsibilities he was under no obligation to assume. As such, he is entitled to recover the money he spent on the house.

Kethley v. Draughon Business College, Inc. 535 So.2d 502 (La. App. 2d. Cir. 1989). This is an action to void a contract, and for damages related to the contract. Action: Plaintiff filed suit against defendant based on a lack of consideration for additional employment duties. The trial court rescinded the contract and granted the plaintiff damages. Facts: Plaintiff was a teacher at defendants college. Defendant requested that the plaintiff teach another class. After plaintiff received his first check, he realized he was not being paid for the additional work. Issue: Held: performance. Whether plaintiff is entitled to damages related to the contract. The court held that plaintiffs recovery must be in form of damages rather than specific

Rule: Art. 1967 protects plaintiffs reliance when he knew or should have known that the promise would induce the other party to rely on it to his detriment and the other party was reasonable in so relying.
Reason: The court held that the above Art. Incorporates detrimental reliance as an additional basis for enforceability of obligations. Further, this allows either specific performance or damages to the disappointed promisee. Martin v. Schluntz 589 So.2d 1208 (La. App. 4th. Cir. 1991). This is an action to void a contract, and for damages related to the contract. Action: Plaintiff brought this suit against defendant for breach of contract and damages. The trial court held that there was no contract between the parties, and that the legal presumption was that the lease agreement was an oral month-to-month lease. The trial court also awarded her $175 in damages. Plaintiff appealed. Facts: Plaintiff owned some immovable property in New Orleans. In April of 1987, defendant spoke with the plaintiff about leasing the premises. Defendant requested a rent reduction ($450 v. $500) for a longer lease, to which plaintiff agreed. This was done orally. Defendant later notified plaintiff of his intent to vacate in August of 1987, bringing the length of his occupancy to three months. When he moved out, the premises were unsanitary and damaged. It should be noted that the written lease was never signed. In fact, plaintiff, who was a law student, states that while she continued to request defendant sign the lease, she never prepared one. Issue: Whether there was a contract between the parties based on the oral agreement. Whether plaintiff is entitled to damages for detrimental reliance. Whether plaintiff is entitled to damages for breach of the lease agreement. Affirmed.

Held:

Rule: LSA C.C.Art. 1967 A party may be obligated by a promise when he knew or should have known that the promise would induce the other party to rely on it to his detriment and the other party was reasonable in so relying. Recovery may be limited to the expenses incurred or the damages suffered as a result of the promisees reliance on the promise. Reliance on the gratuitous promise made without required formalities is not reasonable. The essential elements to state a detrimental reliance theory of recovery in Louisiana are: (1) representation by conduct or word; (2) justifiable reliance thereon; and (3) a change of position to ones detriment because of the reliance.
Reason: The court held that there was no contract between the parties as there was never anything signed. Based on the oral agreement, the court applied the legal presumption that the lease was month-tomonth. She got damages for the cleaning, detrimental reliance, and the rent reduction for a total of 275.