Losecco v. Gregory - 32 So. 985 (La. 1901)

Rule:

However general may be the terms in which a contract is couched," says Article 1959 of the Civil Code, "it extends only to the things concerning which it appears the parties intended to contract.

Facts:

Defendant Albert Gregory owned an orange grove in the Parish of Plaquemine, about sixty miles south of the City of New Orleans. Plaintiff Vincent Losecco was, and had been for twenty-five years, an orange crop buyer. He had frequently bought orange crops in advance, some of which, as a result of cold weather, had failed entirely. Plaintiff had been known to buy crops as far in advance as three years. The parties entered into a contract, however, within three months after the execution of this contract, and, before the trees had a chance to even put out the blossoms for the crop, a freeze came and killed the trees, root and branch. Plaintiff contended that the subject of the sale was the future crops, and that the contract was conditional upon these crops eventually coming into existence, and that the failure of this condition annulled the contract. Further, plaintiff contended that so long as crops continue to be attached to the realty, they were part of the realty and belong to the owner of the soil, and if they perish by cas fortuit extraordinaire, or vis major, their loss falls upon such owner, and not upon the purchaser, unless the latter has specially assumed such risk; the presumption, otherwise, being that he has assumed only ordinary risks. Defendant, on the other, contended that the subject of the sale was not the crops themselves, but only the hope of them, coupled with the right to take them in case they materialized, that even if the sale was of the crops themselves, plaintiff assumed the risk of their loss.

Issue:

Was the defendant’s contention that the plaintiff assumed the risk of loss has merit?

Answer:

No.

Conclusion:

The court held that the parties did not contemplate this risk of freezing, and that, as a consequence, plaintiff did not take it upon himself. The court held that in plaintiff’s twenty-five years of experience, he had not known the trees to be killed, nor even to be so injured as not to produce a crop the following year, nor had the oldest inhabitant known of such a thing. As such, under the circumstances, the court held that it would be putting a most strained construction on the situation to hold that the parties in making the contract took into consideration the contingency of the trees being thus killed or injured. The most prudent and cautious speculator would hardly have done so. If he had thought of the matter at all he would have assumed that nature would not deviate from her usual course.