nothing to trick or deceive the purchaser, and if the latter examines the subject of the sale, and its inferiority or defect is apparent, or if he has a full opportunity to inspect it and could have ascertained its character by the exercise of ordinary care, then the presumption is that he acted entirely upon his own judgment, and he cannot reject the article because it is not of the kind, quality, or degree of excellence which he supposed he was bargaining for.21 "As applied to sales of personalty, in the absence of express warranty, where the buyer has an opportunity to inspect the commodity, and the seller is guilty of no fraud, and is not the manufacturer or grower of the article he sells, the rule of caveat emptor applies, and the seller is not liable for defects in the article sold. If the purchaser distrusts his judgment, he can require of the seller a warranty as to quality or condition, and he cannot relieve himself and charge the seller on the ground that the examination will occupy time and is attended with labor and inconvenience. The rule applies even in the case of sales by sample, since the buyer may in such case protect himself by requiring a warranty that the goods to be delivered shall be the same as the sample exhibited." 22 But if goods are sold by description, and not on the buyer's selection, and he has no opportunity to inspect them until after delivery, he has the right to reject them and rescind the contract on discovering that they are defective or inferior, either on the ground that the seller Hensley, 118 Iowa, 575, 92 N. W. 678; Tarnow v. Carmichael, 82 Neb. 1, 116 N. W. 1031; Wolf v. Michael, 21 Misc. Rep. 86, 46 N. Y. Supp. 991; Sockman v. Keim, 19 N. D. 317, 124 N. W. 64; Hadley v. Clinton County Importing Co., 13 Ohio St. 502, 82 Am. Dec. 454; Beetle v. Anderson, 98 Wis. 5, 73 N. W. 560. And see, supra, §§ 61, 64. 21 Kellogg Bridge Co. v. Hamilton, 110 U. S. 116, 3 Sup. Ct. 542, 28 L. Ed. 86; Shackelford v. Fulton, 139 Fed. 97, 71 C. C. A. 295; Hansen v. Baltimore Packing & Cold-Storage Co. (C. C.) 86 Fed. 832; Long v. Duncan, 14 Ky. Law Rep. 812; Farrell v. Manhattan Market Co., 198 Mass. 271, 84 N. E. 481, 15 L. R. A. (N. S.) 884, 126 Am. St. Rep. 436, 15 Ann. Cas. 1076; Galbraith v. Whyte, 2 N. C. 464; Springfield Shingle Co. v. Edgecomb Mill Co., 52 Wash. 620, 101 Pac. 233, 35 L. R. A. (N. S.) 258. Compare Walker, Evans & Cogswell Co. v. Ayer, 80 S. C. 292, 61 S. E. 557. 22 Barnard v. Kellogg, 10 Wall. 383, 19 L. Ed. 987. As to sales by sample, see infra, § 182. commits a fraud in substituting inferior articles, or for breach of the implied warranty that the goods delivered shall correspond to the description.23 This applies also, it seems, to goods sold in closed boxes or barrels or in bales, so that the buyer has no opportunity of determining the quality of the articles, or the extent to which they may be damaged or inferior, until he has opened the containers and examined the contents in detail.24 Other exceptions to the rule of caveat emptor are found in the case where the seller is the manufacturer or producer of the article sold, in which case he is supposed to have a knowledge of its constituents, quality, or mode of production which the buyer cannot possess, 25 and in the case where the seller knows that the purchaser is buying the article for a particular use, in which case there is an implied warranty that it is fit for that specific use,20 and also in cases where the defect in the article sold could only be discovered by one possessing a certain special or technical skill or knowledge, which the particular buyer does not possess.27 § 179. Redhibitory Defects.-In the civil law, as administered in Louisiana, "redhibition" is the avoidance of a sale on account of some vice or defect in the thing sold which renders it either absolutely useless, or its use so inconvenient and imperfect that it must be supposed that the buyer would not have purchased it had he known of the vice or defect. And a "redhibitory vice" or defect in an article sold is one for which the seller may be compelled to take it back, or a defect against which the seller is bound to warrant.28 The statute law of that state excludes from the category of redhibitory vices such defects as are appar 23 Hoyle v. Southern Saw Works, 105 Ga. 123, 31 S. E. 137; Richard P. Baer & Co. v. Mobile Cooperage & Box Mfg. Co., 159 Ala. 491, 49 South. 92. 24 Richards v. Burke, 7 La. Ann. 242; Summers Fiber Co. V. Walker, 33 Ky. Law Rep. 153, 109 S. W. 883. 25 Infra, § 189. 26 Infra, §§ 190, 191. 27 See Sanford & Brooks Co. v. Columbia Dredging Co., 177 Fed. 878, 101 C. C. A. 92. And see, supra, §§ 61, 64. 28 Civ. Code La. art. 2520; Pothier, Contract of Sale, No. 203. ent, because these the buyer may be supposed to have discovered for himself, but this does not include defects of goods sold in closed boxes or barrels, so that, for instance, if vegetables sold in that manner are found to be in a condition making them unfit for use, the purchaser can rescind without an offer to return the goods.29 An action to rescind a contract of sale may be maintained on account of a redhibitory defect, although there was no express warranty.30 And when the court is satisfied from the evidence that any one of the redhibitory vices existed at the time of the sale, and that it became apparent within a short time after the sale, it will annul the sale and decree a return of the price paid.31 § 180. Deficiency in Number or Quantity of Articles Contracted For.-Where a seller delivers or offers to deliver a less quantity of goods than was contracted for, the buyer is not compelled to accept such a partial performance, if the deficiency is material and the contract indivisible, but may reject the tender and rescind the contract.32 This rule is applied chiefly in cases where a collection of articles is sold as an entirety. Thus where a contract is made for the sale of a stock of goods at a certain percentage of their cost, and the seller withholds a portion of the stock or refuses to let it go at the price agreed on, the buyer may repudiate the whole contract.33 So where plaintiff agreed to sell to defendant the furniture and household goods used in his hotel, and gave an itemized list of the goods sold, but when he delivered them, many of the articles named in the list could not be found, it was held that defendant was entitled to rescind the sale.34 In another case, the plaintiff purchased the furniture, fixtures, and good will of a rooming 29 Richards v. Burke, 7 La. Ann. 242. 30 Icar v. Suares, 7 La. 517; Maurin v. Martinez, 5 Mart. (La.) O. S. 432. 31 Lynch v. McRee, 18 La. Ann. 640. 32 J. A. Ruhl Clothing Co. v. Singleton, 161 Mo. App. 366, 143 S. W. 529; Boyd v. Second Hand Supply Co., 14 Ariz. 36, 123 Pac. 619. See William Hanley Co. v. Combs, 60 Or. 609, 119 Pac. 333; Spence v. Hull, 75 Or. 267, 146 Pac. 95. 33 Behrman v. Newton, 103 Ala. 525, 15 South, 838. 34 Kuhlman v. Wood, 81 Iowa, 128, 46 N. W. 738. house from defendant, giving part cash and a series of notes for the balance. After title had passed, defendant surreptitiously removed a quantity of the goods from the house. It was held that plaintiff was not limited to a suit at law for conversion, but was entitled to sue in equity, and to a decree directing a cancellation of so much of the debt as represented the value of the property retained, and to a surrender of notes equal to such sum.35 So where one contracted to sell and deliver 1,000 gallons of oysters per day for a specified period, but his deliveries actually ranged from 10 gallons to about 300 gallons a day, it was held that the other party was justified in refusing to continue the contract. But, as appears from this case and others like it, while one may be warranted in breaking off a contract calling for continuous or successive deliveries, on account of deficiency in the quantity delivered, he can rescind only as to the future performance of the contract, and must pay for what he has actually received and retained. Thus, in a case in New York, the contract was to sell and deliver six engines as they were required, and after delivery of two of the engines, the third was called for and delivery of it refused. It was held that the contract might be rescinded and that any money advanced above the contract price of the two engines delivered might be recovered back.37 36 If the number or quantity is not specifically stated, but is only intended to be approximate, the right to rescind will depend on the materiality of the deficiency. Thus, in a contract for the sale of a ranch and the cattle on it, where the seller does not undertake to specify the number of cattle, but gives an estimate as to the number, the buyer is not entitled to rescind the contract because of a deficiency in the number unless this deficiency is material and he is injured by the incorrectness of the seller's estimate.38 So, in a lease of coal lands, where the coal was known to exist, and the quantity present was as definitely ascertained as it could be short of being actually mined out, the exhaus 35 Brown v. Statter, 206 Mass. 119, 92 N. E. 78. 88 Blair v. Baird, 43 Tex. Civ. App. 134, 94 S. W. 116. 39 tion of the deposit is no defense to an action for the royalty stipulated to be paid annually during the term of the lease. But of course any positive false statements of the seller concerning the number or quantity of articles sold, relied on by the buyer and deceiving him, will constitute a fraud such as to authorize rescission of the contract.40 § 181. Defect in Quality as to Installment or Portion of Goods Purchased.-The buyer of goods of a specified quality and description may refuse to accept the entire shipment, unless all of it corresponds with the contract.1 And where successive deliveries of goods of certain qualities and quantities are to be made at stated periods, and the first deliveries are not according to the contract, the purchaser has the option, not only of rejecting those which are of an inferior quality, but of rescinding the entire contract and of refusing to accept any further deliveries between the time he so notifies the seller and the end of the stipulated period, and this although goods subsequently tendered or offered to be delivered are in all respects equal to the grade and quality contemplated by the contract.43 But the buyer must base his objections and his claim for rescission distinctly on the ground of a lack of correspondence between the goods delivered and the specifications of the con 39 Timlin v. Brown, 158 Pa. 606, 28 Atl. 236; Light v. E. M. Grant & Co., 73 W. Va. 56, 79 S. E. 1011, 51 L. R. A. (N. S.) 792. 40 Dyer v. Cowden, 168 Mo. App. 649, 154 S. W. 156; Kiefhaber Lumber Co. v. Newport Lumber Co., 15 Cal. App. 37, 113 Pac. 691. 41 Wiburg & Hannah Co. v. U. P. Walling & Co. (Ky.) 113 S. W. 832. But compare Stelwagon v. Wilmington Coal-Gas Co., 2 Marv. (Del.) 184, 42 Atl. 449. And see Sleepy Eye Milling Co. v. Hartman, 184 Ill. App. 308. 42 Moran v. Wagner, 28 App. D. C. 317; Quwack v. Cruse, 1 Louis Maull Cheese & Fish Co., 155 Mo. |