Fitzgerald v. Hyland
199 La. 381, 1942 La. LEXIS 1116, 6 So. 2d 321 (1942)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
In Louisiana, a sale of immovable property is considered "per aversionem" (from boundary to boundary) if the object is designated by adjoining tenements and sold as a whole for a gross sum, rather than "per measure" where price is determined by quantity; in a sale per aversionem, discrepancies in stated measurements do not entitle the buyer to a diminution in price, absent fraud.
Facts:
- Defendants owned a vacant plot of ground in Square 148 of the Harlem Subdivision, fronting on Jefferson Highway and bounded on the north by Hawkston Street.
- Defendants' realtors posted a sign advertising the property for sale, which stated "210 Front By 205 Deep."
- Plaintiff and his wife, interested in establishing a seafood restaurant, saw the sign, inspected the property, and at the realtor's office, inquired about the price and was told it was $35 per front foot and 250 feet deep.
- Plaintiff informed the realtor he desired only 120 feet of frontage and offered to purchase it for a lump sum of $3,500 cash.
- On June 15, 1939, plaintiff signed a written offer to purchase "Vacant property in square 148 nearest Harlem Ave., fronting on Jefferson Highway running thru square the grounds measuring approximately 120 x 205. or, as per title for the sum of Thirty-five Hundred and no/100 Dollars ($3500.00), on terms of Cash."
- Defendants formally accepted plaintiff's offer three or four days later.
- Subsequent surveys revealed the property actually had a depth of only 165 feet (from Jefferson Highway to Hawkston Street), creating a 40-foot shortage compared to the 205 feet stated in the advertisement and offer.
- Plaintiff, upon learning of the actual depth, refused to accept the property at the agreed price of $3,500 and demanded a diminution in price of $675.78, proportionate to the discovered shortage, which defendants refused.
Procedural Posture:
- Plaintiff filed suit in a trial court (case was tried by jury) against defendants, seeking specific performance of the sale with a diminution in price and damages.
- Defendants filed exceptions of no cause and no right of action, which were referred to the merits by the trial court.
- The case was tried by a jury, which rendered a verdict in favor of the plaintiff on all points as prayed for.
- The trial judge approved the jury's verdict and signed a judgment accordingly, ordering the diminution in price and damages.
- Defendants appealed this judgment to the Supreme Court of Louisiana.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does a buyer of land described with specific boundaries and a stated approximate depth, purchased for a lump sum, have a right to a proportionate diminution in price when the actual depth is less than stated, absent fraud or concealment?
Opinions:
Majority - Odom, Justice.
No, a buyer of land described with specific boundaries and a stated approximate depth, purchased for a lump sum, does not have a right to a proportionate diminution in price when the actual depth is less than stated, absent fraud or concealment. The court found that the contract constituted a sale "per aversionem" (from boundary to boundary) rather than a sale "per measure" (by specific quantity at a rate per unit), applying Louisiana Civil Code Articles 2495 and 854. Article 2492, which permits price diminution for quantity discrepancies, applies only to sales made "with indication of the extent of the premises at the rate of so much per measure," where quantity is the primary basis for pricing. In this case, the contract stated a fixed sum ($3,500) for "the whole of a certain lot or plot of vacant ground" and explicitly stated the lot ran "thru square," from Jefferson Highway to Hawkston Street, thereby establishing fixed boundaries for its depth. The stated "approximately 120 x 205" was merely descriptive and yielded to the fixed boundaries. The court emphasized that the contract must be construed as a whole, giving effect to all its provisions, and that measurements yield to designated boundaries in a sale per aversionem. No fraud or concealment was alleged or proven; the representation of depth was made in good faith and through error.
Analysis:
This case is significant for clarifying the distinction between "sale per aversionem" and "sale by measure" under Louisiana Civil Code, establishing that fixed boundaries take precedence over quantity descriptions when property is sold as a whole for a lump sum. It reinforces the principle that buyers bear the risk of measurement discrepancies in boundary-to-boundary sales, absent fraud, and underscores the importance of interpreting real estate contracts as a whole. This precedent is crucial for practitioners and students in understanding the legal implications of property descriptions and pricing structures in real estate transactions, particularly in civil law jurisdictions.
