On Application for Rehearing.
Provosty, J.Defendant owned an orange grove in the Parish of Plaquemine, about sixty miles south of the City of New Orleans. Plaintiff was, iand 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 the following contract:—
“I have this day, in consideration of the terms hereinafter named, sold unto Vincent Losecco, of the City of New Orleans, two crops of oranges on my place, as follows, i. e.:
“1st. All oranges that my trees miay produce in the year (1899) eighteen hundred and ninety-nine.
“2nd. All oranges that my trees may produce in the year (1900) nineteen hundred.
“For the sum of eight thousand dollars ($8000.)
“Four thousand dollars paid cash down iand the balance four thousand dollars to be paid on the first day of December, 1900. Purchaser assumes all risks. Vendor to furnish teams, and carts, and drivers, to move the two crops.”
*657Within three months after the execution of this contract, and, therefore, during the same winter, and before the trees had had -a chance to even put out the blossoms for the crop of 1899, a freeze came and killed the trees, root and branch. Cold weather had been known to destroy the crops of the year, 'and even kill the trees half way down, but never, within the memory of the oldest inhabitant, had the trees been killed entirely, or even so injured as not to produce a crop the following yeas'. In the several histories of Louisiana mention is made of such a killing frost having occurred in 1748, 1768 and 1830, but whether the trees then killed were so far south as these of defendant’s, does not ¡appear; and nothing shows that the parties, when they entered into their contract, had any knowledge of these events of the-distant past.
Plaintiff claims back the $4,000 paid under the contract, and defendant demands in reconvention the $4,000 payable on the 1st day of December, 1900.
Plaintiff contends 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 annuls the contract.
He contends further that so long as crops continue to be attached to the realty, they are part of the realty and belong to the owner- of the soil, and if they perish by cas fortmt extraordinaire, or vismajor, 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 contends 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; and that even if the sale was of -the crops themselves, plaintiff assumed' the risk of their loss.
We do not see how the doctrine of the immobility of growing crops can cut any figure in the case. If ¡the sale was of the hope merely, then plaintiff got what he bargained for, and there is an end of the matter. If, on the other hand, the sale was of the crops themselves, then the loss must fall upon one or other of the parties according to the interpretation placed upon the risk clause. It can not be and is not contended that the plaintiff could not validly assume the risk of *658■the trees being destroyed by cold — the question must be, therefore, ,simply whether or not he made the assumption.
It was possible under our Code for the parties to make either the •crops themselves or the hope of them; the subject of their contract. 'Civil Code, Articles 2450, 2451.
Had they made the crops themselves the subject of their contract, •the sale, in the absence of contrary stipulation, would have been conditional upon the crops eventually coming into existence, as contended by plaintiff. Duranton, Vente, Nos. 169, 171, 172; Troplong, Vente, No. 240; Delsol, Vente, Art. 1, pp. 28 and 29; Pothier, Vente, No. 132; Baudry-Lacantinerie, Vol. II, No. 842.
Had they made the mere hope of the crops the subject of their •contract, the sale would have been proof against all eventualities, a3 •contended for by defendant. Same authorities. Also Baudry-Lacantinerie, Vente, No. 97; Laurent, Vente, No. 99.
Plaintiff argues that even if the sale was merely of a hope, there •went along with it a certain warranty of the continued existence of the trees during the time required -for the production .of the crops. That •even in the case of the sale of the oast of the fisherman’s net, which is the example given by the Code as an illustration of the sale of a .hope, there goes with the sale a warranty that the net shall continue in being until the time shall arrive for the casting of it; and in .support of this plaintiff quotes as follows:
“Celui qui me vend un coup de filet guarantit que le filet sera .jeté, et que la totalité de son produit me sera remise; si done le pecheur refuse de jeter son filet ou de me remettre la totalité du poisson qui en provient, on déterminera l’étendue de cette garantie: .savoir, .au premier cas, en estimant l’espérance du coup de filet, et au .second cas, en estimant le poisson que le pécheur. refuse de livrer. II n’en sera pas de meme de la vente de fruits avenir; car s’il ne provient aucun fruit, le prix convenu ne sera pas du. La raison en est que cette sorte de vente est toujours censée faite sous la condition, JSi fructus nascurvtur." 'Dictionaire dte Digeste, Thevenot Dessaules, T. 1. Vo. Eviction, p. 266.
We do not think that anything further is meant here than that the fisherman warrants that he shall not refuse to cast the net, or to give up the fish.
The seller of a hope, has satisfied his obligations fully and com*659pletely when he has executed the lact of sale; delivery accompanies the act and nothing further remains for him to do. The hope is a presently existing incorporeal thing, and since it is, of itself and separately from the thing on which it hears, made merchantable by the Code, its sale cannot be differentiated from the sale of any other thing, corporeal or incorporeal. Of course the seller warrants that the basis of the hope is not illusory, that is to say, he warrants that there is in reality an existing hope, and that he is the owner of it; but so does the seller of a horse warrant that there is a horse, and that he is the owner of it. The horse must be actually delivered, whereas the hope can not be delivered, and hence delivery accompanies the tact of sale; but beyond this there is no difference between the two sales. The vendor of the hope no more warrants the continued existence of the hope, or of the conditions serving as the basis of it, than the vendor of the horse warrants the continued •existence of the horse.
The question of whether the crops, or the mere hope of them, was the subject of the sale, is to be determined by the terms of the •contract read in the light -of the attending circumstances.
Chief among these, according to the unanimous sentiment of the civil law writers, is the comparison ¡between the price agreed upon and the value of the thing, the inference being one way or the other accordingly as the disparity between price and value is wide or narrow.
Unfortunately, in this case, the question of this value has been left by the evidence as much in doubt as the main question itsel f by the contract. Both sides -argue from this value in favor of their own theory, one placing the value low, -and the other high.
Plaintiff proved! that the crop of 1898 was sold for $2700; but at wha,t stage of the growth of the crop this sale was made, and whether the purchaser assumed any risks, as in the present case, is not •shown. Plaintiff proved in addition that the entire plantation of the defendant is assessed! at $3000; also that it is four acres in width. Also, by the owner of the adjoining plantation, defendant’s witness, that the orange grove does not extend further back than from five to six acres. Also that defendant bought 1 by 40 of the 4 by 40 acres composing his plantation in January, 1898, folr $1000. But the witness admits that he might be mistaken as to how far back the *660grove extends, and this court is aware that property is sometimes underestimated on the assessment rolls; and nothing shows that any part of the grove is on that part of the plantation bought in 1898; although in the latter case the acreage of the grove would have to be extended much further back to make room for the 12,000 trees, of which 6000 bearing trees, which, according to defendant, compose the grove.
To prove this large number of trees, and to overcome the strong circumjstantilal evidence offered by plaintiff, going to establish a small acreage for the grove, the only evidence offered by defendant is-the following, which we copy verbatim:—
“It is admitted that Gregory, who is present, would swear -that he had on his farm -altogether 12,000 trees. About 6000 of which were bearing trees.”
The age of the trees seems to be conceded to have been 8 years. As to what is the value of the 'average yield of an orange tree of that age there is no evidence.
Plaintiff’s counsel point to the small acreage of the grove, deducing from this exiguity a small number of trees; and point to the small value of the plantation, as appears by the -assessment rolls and by the sale of January, 1898; and, finally, point to the price of $2700,. for which the crop of 1898 -was sold; -and argue that $4000 was approximately a full -price for the crop itself.
Defendant’s counsel claim that a distinction is to be observed between an admission that an absent witness would 'make a certain, statement, and an admission that a witness present in court would make a certain satement; (that the. one admission is made under stress of circumstances, to avoid' -a continuance of the case; whereas, the qlther admission is made voluntarily, and because the party making it finds himself unable to controvert the fact on which the statement bears; that the latter admission is in the nature of an acknowledgment -of the correctness of the statement. Basing themselves on this, counsel assume that the proof shows that there were-in the grove 6000 bearing trees, and counsel argue that as the product of each tree was worth $5.00, the total crop was worth $30,000; -and that the fourth of this would be a value large enough to have induced the plaintiff to pay $4000 for the crop as a speculation, he assuming the risk of the non-materialization of the sum.
*661We can see no good reason why the admission that a witness would make a certain statement should be stronger evidence than the statement itself would! be if made by the witness; and dealing with the case as if defendant had made the statement in question, we must hold that this unsupported statement is not sufficient to overcome the strong showing made by plaintiff as to the probable number of these trees. Therefore, not knowing with any degree of certainty what was the number of the trees, and knowing still less what was the value of the average crop of an orange tree eight years old, we are not in a position to establish a comparison between the value of the crops and the price of the sale.
Another circumstance on which defendant places reliance is the fact that plaintiff had made it part of his business to buy orange crops in advance, on a speculation, as he himself testifies. He was a speculator in orange crops, says defendant, assuming all risks and securing thereby a material reduction in the price.
But there is no proof as to how the prices of the crops thus bought in advance compared with the value of the crops after maturity; nor is there any proof that payment was exacted for the lost crops, nor of any local custom in that connection. Orange crops, like all other crops, vary in quantity and, quality, affording a margin for speculation irrespective of the risk of total failure from extreme cold; and, besides, .assumption of risk, of loss of crop would not necessarily mean assumption of risk of loss of grove. Then, again, there is a broad and marked distinction between the purchase of -a crop in advance and the purchase of the hope of the same crop. As already stated, the one sale is valid only if the crop materializes; whereas the other is valid whatever befall. These previous purchases go to show that plaintiff must have been well up in the knowledge of what risks an orange crop was exposed to, but do not show that he consented to assume risks so extraordinary as to amount clearly to vis major or cas fortuit extraordinaire.
The salient feature of the case outside of the contract itself is that the obvious thing for the parties to deal about was the crops, themselves and not the the mere hope of them; and that therefore the natural inference would be that they had made the crops and not the hope the subject of the sale.
Coming to the contract, there is no denying that the wording of it *662is peculiar; after the statement that what is sold is two crops of oranges there is added, as if by way of explanation, the videlicet, “all the oranges that my trees may produce,” not what the trees will, hut what they may — the use of the subjunctive form, of the verb expressing uncertainty, implying .that the trees might and might not produce any oranges, and that the plaintiff took his chances in that regard; and there is no denying that this peculiarity of language, when considered in connection with the sweeping assumption of risks, gives rise to an implication of considerable strength that the mere hope of the crops was the subject .of the sale.
Of course, if given the latitude of construction that its terms call for, this clause of assumption of all risks would show beyond la. peradventure that nothing more than a mere hope was sold; for, one who assumes literally all risks does no,t buy anything' more than a mere chance; hut when we come to consider later on in another connection the extent of the assumption of risks under this clause, we shall show, we think, that clauses couched in such general terms are no.t to be construed according to their very letter, hut according to what, under all the circumstances of the matter, was most probably the intention of the parties; and that iby this clause the purchaser did not intend to assume any other risks than such as the crops were at that time supposed to be liable to. So construing this clause, the theory of the sale’s 'having been of nothing more than a mere hope, finds neither in the surrounding circumstances, nor in the terms of the (contract .any support other than the implication arising,, as stated, from the peculiarity of the wording of the contract.
The implication stops short of legal certainty. It leaves the mind in doubt; and hesitation in the premises must forebode failure to the defendant’s theory. “The seller,” says the Code, Article 2474, “is bound .to express himself clearly respecting the extent of his obligation; any obscure or ambiguous clause is construed against him,”
We do not forget that the rule of interpretation by which uncertainty is construed against the vendor, is to he applied only in last resort, when all other means of knowing the intention of the contracting parties have failed; hut has that extremity been reached in the present case? Have we not, both on the submission of the case and on this application for a rehearing, exhausted all known *663means of interpretation in the vain endeavor to reach a satisfactory" conclusion on this question.
We shall give heed to the conservative wisdom of our predecessors-who, after deciding against the vendor in a case of considerable’ analogy with the present one, added the fallowing:—
“But even were the case doubtful wi-th us, we would come to the same conclusion. The price stipulated for plaintiff’s pretensions was-a large one, end -in case of doubt would incline in favor of a party striving to avoid a lops against one seeking to obtain a gain;” McDonald vs. Auibert, 17 La. 446.
A consideration of this kind does not look strong from .the standpoint of pure logic, but it addresses -itself strongly to the conscience-of the court
Eelinquishing as hopeless the attempt to determine — except by means of the presumption enforced above — the question of what, as-between the crops themselves and the mere hope of them, formed in reality the subject of .this sale, we address ourselves to the task of ascertaining what risks the parties intended that the purchaser should assume; in other words, what scope should be given to the clause,, “purchaser assumes all risks.”
Writings designed to express the conditions of an agreement are-not to be read in the abstract, and to be construed by mere verbal criticism* but are to be read in connection with the facts of the-case, and to be construed according to what, all things considered, was most probably the intention of the contracting parties.
The clause now in question, for instance, taken in its literal meaning, would embrace such unforseen risks 'as those pointed out in our original opinion, namely, the invasion of the country by a foreign foe, or the irruption of the mighty river flowing near by, and the-consequent destruction of the grove; and yet it must be dear to any, one that nothing could be more .improbable than that the contractants should have given a single thought to any such contingencies as these,, in connection with their contract. The clause then is not to be construed according to its literal meaning.
“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.”'
“The reason of this rule,” says Pothier, Obligations, No. 86, “is-*664evident. The contract being formed by the will .of the contracting parties, it «an have effect only in regard to what the contracting parties have intended, or have had in contemplation.”
Our question (then is, what risks did the contracting parties have in contemplation; or, more specifically, did they have in contemplation a freeze which, occurring before the end of the same winter, would cut off the crops bargained for? That question resolves itself into another — had such a thing happened before?
Insofar as the cutting off of one crop is concerned, it had. According to plaintiff’s witness, Martin, the crop, of 1881 failed as the result of a freeze that occurred on the 10th of January, 1881; and it failed entirely. The freeze that cut off the crop of 1899 came on the 12th-14th of February, one month later than that of 1881. True, seventeen years had gone by without a recurrence of this experience, but speculators in orange crops had nevertheless to keep note of it and govern themselves accordingly, lit had to enter as one of the prime factors in their calculations. They had to know that what had happened might happen again, and that the crop ran the risk; and that the purchaser would assume it if he assumed the risks to which the crop was exposed. This fatal freeze of 1881 had happened within plaintiff’s own experience, iand therefore he had double reason to know of it, and to be guided accordingly; and besides there had been other years when the temperature had fallen low enough to kill the crops, notably in 1886 and 1895. We hold that plaintiff assumed this risl^ ®nd that he must abide the consequences.
But in his twenty-five years experience plaintiff had not known the trees to ¡be killed, nor even to be so injured! as not to produce a crop the following yeaT, nor had the oldest inhabitant known of such a thing. Some of the .trees on the adjoining farm were thirty-eight years old. Under the circumstances, we think it would be putting a most strained construction on the situation to hold that .the parties in making this contract took into consideration the contingency of the trees being thus killed of injured. The most prudent and cautious speculator would hardly have done so. If he had thought of the matter ia,t all he would have assumed that nature would not deviate from her usual course. We hold, therefore, that the parties did not contemplate thi3 risk, and that, as a consequence, plaintiff did not take it upon himself.
*665We have to assume that the degree of cold which proved fatal to the crop of 1881 proved equally fatal to that of 1899; and that, therefore, the crop of 1899 would.have been cut off just the same if the temperature had not gone lower than in 1881. . This being so, the losa of the crop is to he attributed to the fact that the temperature fell as low as in 1881, and not to the fact that it fell lower. The excess of cold beyond the degree .of 1881 is, therefore, immaterial insofar as the loss of the crop of 1899 is concerned. If the trees had not perished the crop would have failed just the same as in 1881; at least we are hound so to assume.
The same is not true of .the crop of 1900. Eor the freeze of February, 1899, to cut it off, a lower, and for .aught we know a much lower, temperature was required' than the degree attained in 1881. The freeze of 1881 did not prevent the crop of 1882. And we have to assume that if the freeze of 1899 had not been greater, and for aught we know very much greater, than that of 1881, or any of the other frost years, the crop of 1900 would not have failed.
If we had held the sale to have been of the hope of the crops, all risks of whatsoever nature would have fallen to the lot of the purchaser, under the maxim, res perii domino; but holding as we have done that the sale was of the crops themselves the legal situation is that the vendor warranted the continued existence of the grove during the time required for the production of the crops, and that he is relieved of this warranty only to the extent that the purchaser assumed the risk of the loss of the crop. Between the lease of a grove and the sale of the future fruits of the same grove there is a close anology; both contracts purport to procure to the taker the fruits of the grove in consideration of a fixed sum of money. The destruction of the grove would annul the lease and for the same reason a destruction of the grove ought to annul the sale. A lessee may assume the risk, but a clause by which he should have assumed “all risks of whatsoever nature, including those of .an extraordinary character” would not be construed >as an assumption of the risk of .the destruction of the leased premises, in whole or in part. The intention to assume such a risk would' have to he “clearly manifested,” and the assumption would have to he “restrictively construed.” Marcadé, Com. on Art. 1773, C. N.
Oral argument having been allowed and heard on the application *666for rehearing, it is considered that the case is before the court for final action as fully as though a rehearing had been formally granted.
It is therefore ordered, adjudged and decreed that the decree heretofore entered in this case be set aside insofar as it condemned the-defendant to restore the four thousand dollars paid for the crop of 1899, and condemned defendant to pay the costs of suit; and that said decree be maintained insofar as it rejected the reconventional demand of the defendant. And it is further ordered, adjudged and! decreed that the plaintiff’s suit ¡be rejected with costs in both courts.
Rehearing refused.
Nicholls, O. J.,is of the opinion that the contract in question was-an aleatory contract of sale of a hope — he therefore concurs in the decree insofar as it relieves the defendant to return to plaintiff the portion of the price received, but dissents from that portion of the-decree which relieves the plaintiff from payment of the balance of the price.