(dissenting).
By applying the third and fourth paragraphs of Article 1847 of the Civil Code, which declare, in substance, that false assertions relative to the value, quality, etc., of the object of the contract are not such artifices as will invalidate it provided it be not difficult or inconvenient to discover the truth or falsity of the assertions, the majority conclude that plaintiff has no cause of action because she could have easily discovered the falsity of the representations made by the Babins relative to the legally permissible rentals of the apartments. In resolving thus, the court, in my opinion, has completely overlooked the gravamen of plaintiff’s petition and, furthermore, has misapplied Article 1847 to the factual allegations presented.
Initially, plaintiff seeks a rescission of the sale of the apartment house because of an error of fact, resulting from the Babins’ representation that the legally collectible rent of the apartments was $375 per month, when the OPA ceiling on the chargeable rental was $277. Plaintiff alleges that she believed this representation and that, had she known otherwise, she would “never have entered into the contract of purchase or effectuated the same”. Taking these allegations of fact as true for the purpose of determining the validity of the exception, it seems apparent to me that the sale is subject to rescission for error of fact under Articles 1821, 1823, 1826, 1845 and 2529 of the Civil Code.
Article 1826 declares that no error in the motive can invalidate a contract “unless the other party was apprised that it was the principal cause of the agreement, or unless from the nature of the transaction it must be presumed that he knew it”.
Article 1845 provides: “Error as to the other qualities of the object of the contract, only invalidates it, when those qualities are such as were the principal cause of making the contract”.
And Article 2529 reads: “A declaration made in good faith by the seller, that the thing sold has some quality which it is found not to have, .gives rise to a redhibition, if this quality was the principal motive for making the purchase”.
Since plaintiff’s specific charges are that the income produced by the apartment *98house was the principal cause for the making of the contract, it is obvious from the provisions of the above quoted articles of the Code that she, upon making due proof, would be entitled to a rescission of the sale — and this, irrespective of whether the representation of the Babins was deliberately false or in good faith.
The third and fourth paragraphs of Article 1847, and the jurisprudence cited by the majority, are inapposite to the case. These paragraphs are mere codifications of the hornbook rule that false assertions of a seller relative to the value, cost or quality of the object are to be regarded as “puffing” on which the buyer is not entitled to rely unless it be difficult or inconvenient to discover the truth. I have no quarrel with this well-established doctrine nor with any of the authorities cited by the majority in support of it. But its inapplicability here is quite manifest because plaintiff alleges specifically that the representation of the Babins relative to the income which the property could legally produce was in the nature of a warranty. And, even if it be not so regarded, it will not do to say that plaintiff was not entitled to rely thereon because she could easily discover the truth. As a matter of fact, there is nothing in the petition which shows that plaintiff could have conveniently ascertained the OPA rental ceiling prices of the apartments. Indeed, the majority, taking cognizance of the location of a branch office of OPA in New Orleans, gratuitously assumes that “plaintiff could have obtained on mere inquiry official information as to the legally permissible rentals”.
Inasmuch as the prevailing opinion is confined to a dismissal of plaintiff’s suit against both defendants on the above stated ground, I have given no consideration to the separate reasons advanced by the French Market Homestead Association for the maintenance of its exception of no right or cause of action and therefore refrain from expressing any view with respect thereto.
I respectfully dissent.