¶1dissenting.
¶2As I see it this case can not be distin*600guished in principle from that of Barber Asphalt Paving Company vs. St. Louis Cypress Company, 121 La. 152, 46 So. 193. In the cited case the Court, after observing that parties were free to make such contracts as they pleased but not impossible contracts and that in this State a mortgage can not be created on movable property (prior to adoption of chattel mortgage act) and that they can not in any state, make a sale which shall not transfer ownership or make a vendee responsible for the price before there was a sale, or make a contract without mutuality of obligation, held on page 167 (46 So. 198):
“And it is for this last reason that the present contract cannot be enforced as a mere innominate contract. Unless the one party transfers the things, there is nothing for which the other party can bind himself to pay money. The one obligation is the juridical cause of the other. If the one party merely promises to sell, the other cannot actually buy, but can only promise to buy; and, so long as he does not actually buy, he cannot owe money. True, our Code says (article 2462) that a promise of sale amounts to a sale; but, by a settled jurisprudence, this means no more than that the contract is susceptible of specific enforcement. Girault vs. Feucht, 117 La. 276, 41 South. 572. It does not mean that the buyer becomes owner of the property, or debtor for the price. Baldwin vs. Morey, 41 La. Ann. 1105, 6 South. 796, and cases there cited. In a case like the present, the owner either parts with the ownership, i. e., makes a sale; or he promises to part with it upon payment of the price, i. e., makes a promise of sale. In the former event he ceases to be owner, since a sale is a transfer of ownership; in the latter event, he does not cease to be owner, but the other party does not become his debtor for money — because the corresponding obligation to a promise to sell is a promise to buy; and so long as one merely promises to buy, the only obligation incurred is that of having to buy; and not that of having bought, or, in other words, of having to pay money. Of course, one can stipulate a money penalty by way of sanction to a promise to buy; but such a stipulation would be an accessory contract to the promise to buy — that is to say, would be an entirely different contract from the one entered into in the present case. Of course, also, one can sell, or buy, an option to buy; but, again we say, this would be a different kind of contract from the one involved in the instant case.”
¶3The case before us presents all of the features referred to by Justice Provosty in the cited case as objectionable. There is here no sale but only an agreement to buy and sell which unconditionally binds the vendee and only conditionally obligates the vendor. The note sued on represents a part of the purchase price of the property without there having been any sale, the plaintiff vendor still retaining title to the property.
¶4For the above reasons I respectfully dissent.