Opinion
No. 49928.
October 1, 1969.
In re: I. H. Rubenstein Son, Inc. applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge.
Application denied. There is no error of law in the judgment complained of.
SANDERS, J., is of the opinion a writ should be granted. In his opinion, the exception of no cause of action was erroneously sustained in that the petition sets forth a cause of action.
SUMMERS, J., is of the opinion the writ should be granted. The controverted clause may not create an enforceable agreement to buy and sell, but the clause: "The parties propose to proceed promptly and in good faith to prepare a final agreement providing for the transaction contemplated herein" does create an unconditional obligation of the parties to make a good faith effort to enter into such an agreement. The failure of Sperry Hutchinson Co. to make this good faith effort, therefore compels them to repair the damage incurred by I. H. Rubenstein Son, Inc. resulting from the failure under the civil law doctrine of culpa in contrahendo. See Schwenk, Culpa in Contrahendo in German, French and Louisiana Law, 15 Tul.L.Rev. 87 (1940).