"Article 2040, properly interpreted, means that the condition is considered fulfilled, when it is the debtor, bound under that condition, who prevents the fulfillment. George W. Garig Transfer v. Harris, [ 226 La. 117, 75 So.2d 28 (1954)]; Southport Mill v. Friedrichs, [ 171 La. 786, 132 So. 346 (1931)]; Morrison v. Mioton, [ 163 La. 1065, 113 So. 456 (1927)]. This rule is but an application of the long-established principles of law that he who prevents a thing may not avail himself of the non-performance he has occasioned and that one should not be able to take advantage of his own wrongful act.
This Court has long recognized the proper interpretation of this article is "the condition is considered fulfilled, when it is the debtor, bound under that condition, who prevents the fulfillment." George W. Garig Transfer v. Harris, 226 La. 117, 75 So.2d 28 (1954); Southport Mill v. Friedrichs, 171 La. 786, 132 So. 346 (1931). This rule is an application of the long-established principle of law providing he who prevents a thing may not avail himself of the non-performance he has caused.
This court, however, has long recognized that the English translation of this provision from the French articles as written in the Louisiana Civil Codes of 1825 (article 2035) and 1808 (article 78) is inaccurate and the French text has always prevailed in decisions of this court. See George W. Garig Transfer v. Harris, 226 La. 117, 75 So.2d 28 (1954); Southport Mill v. Friedrichs, 171 La. 786, 132 So. 346 (1931); Morrison v. Mioton, 163 La. 1065, 113 So. 456 (1927); Walls v. Smith, 3 La. 498 (1832) (dissenting opinion). Article 2040, properly interpreted, means that the condition is considered fulfilled, when it is the debtor, bound under that condition, who prevents the fulfillment.
The plaintiff contends that he was prevented from performing his obligations under the contract by failure on the part of the defendant to supply a derrick for the completion of the well, and that therefore he is excused from further performance or from fulfilling the contract; and being prevented from performing his obligations, he may consider the contract breached. He relies on and cites 17 C.J.S. Contracts § 468, p. 966; LSA-Civil Code, Articles 2040, 2037, 1926, 1931, 1934; Southport Mill, Ltd. v. Friedrichs, 171 La. 786, 132 So. 346; Morrison v. Mioton, 163 La. 1065, 113 So. 456. On the other hand, defendant contends that the plaintiff cannot enforce benefits under the contract as flow in his favor where he is unwilling or unable to discharge his own undertaking therein, and relies upon the case of Seeger v. Seeger, 169 La. 611, 125 So. 732.
Therefore, under Article 2040, R.C.C., which reads: "The condition is considered as fulfilled, when the fulfillment of it has been prevented by the party bound to perform it." since Carlson's actions made it impossible for Ewing to continue to perform his obligations, they are considered by law as fulfilled. Lloyd v. Dickson, 116 La. 90, 40 So. 542; Southport Mill v. Friedrichs, 171 La. 786, 132 So. 346. The question of Ewing's compensation remains for our consideration.
"The condition is considered as fulfilled, when the fulfillment of it has been prevented by the party bound to perform it." Southport Mill v. Friedrichs, 171 La. 786, 132 So. 346; D'Avricourt v. Seeger, 169 La. 620, 125 So. 735; Morrison v. Mioton, 163 La. 1065, 113 So. 456. Thus, we see that prior to the Constitution of 1921, the Levee Board, at the instance of its vendees, had done and performed every act which under the law of its creation it could do to make technically perfect its vendees' title.
The condition of an obligation is considered as fulfilled, when the fulfillment of it has been prevented by the party whose obligation depends upon the conditions. Civ. Code, art. 2040; Deslonde v. O'Hern, 39 La. Ann. 14, 1 So. 286; Lloyd v. Dickson, 116 La. 90, 40 So. 542; In re Brown, 118 La. 943, 43 So. 628; Southport Mill v. Friedrichs, 171 La. 786, 132 So. 346. Appellants complain that the amount awarded as damages by the court below was not proved with sufficient certainty, and, in any event, that it is excessive.
The judgment of the trial court was reversed on appeal, and the case remanded for further proceedings. On the second appeal, which is the case of Southport Mill, Limited, v. George G. Friedrichs, 171 La. 786, 132 So. 346, the judgment of the trial court, which was in favor of Southport Mills, Limited, was affirmed. The agreement involved in those cases, and involved here, is one by which Mrs. Ansley agreed to purchase, through George G. Friedrichs, a real estate broker, the Ile des Coquilles, with its contiguous lands, for the price of $100,000, of which sum $10,000 was deposited by her in the hands of Friedrichs on account of the purchase price, both parties, it is alleged, reserving the right or option to sue for specific performance.
Instead, defendant's reward, viz., all amounts in excess of the stated net figure, would in no manner arise except upon condition of a conveyance as indicated. See Southport Mill v. Friedrichs, 171 La. 786, 132 So. 346 (1931), finding a broker unable to retain forfeited earnest money as compensation for his failed sales efforts. So too, Alliance Financial Serv., Inc. v. Cummings, 526 So.2d 324 (La.App. 4th Cir. 1988), writ not considered, 531 So.2d 465 (La. 1988), deemed a real estate agent entitled to his commission only at the completion of the sale.
The question is further complicated by the fact that, although the listing contract did not provide for a commission, it did contain a provision that the commission might be deducted by the agent from any deposit which he might receive. Whether an agent is entitled to retain any part of such deposit where the contract fails of consummation through the fault of the vendee secured by the agent is considered and discussed by the Supreme Court in Southport Mill v. Friedrichs, 171 La. 786, 132 So. 346, 349, in which the facts were very similar to those found here. There an agent received a deposit of $10,000 from a prospective purchaser, but the sale was not consummated because of fault of the prospective purchaser.