ON APPLICATION FOR A REHEARING.
MOUTON, J.In the act of sale of the auto in question from defendant company to plaintiff, the following clause appears:
“No warranties have been made by the vendor, unless endorsed hereon in writing.”
Neither vendor nor vendee knew of the existence of this clause when the contract of sale was executed, but it is however contended by defendant, that it constituted a waiver of warranties.
That clause indicates or means that vendor had made or given no warranties unless endorsed on the act of sale. It shows he was laboring under the mistaken idea that unless he agreed to the warranties *546and properly endorsed them on the contract, he was not bound by any warranties. It is possible, or even probable, that no warranties had “been made by the vendor;” but even if that were so, they were nevertheless made or implied by law as they are in all contracts of sale. C. C. arts. 1764, 2501. Such warranties are against eviction and latent • or hidden defects of the thing sold, or its redhibitory vices. C. C. art. 2476. These warranties are expressly given by law, and should not be denied the purchaser “unless they have been waived expressly or by the clearest implication.” The reason is that by such waivers the parties make a law unto themselves, in derogation of the general law, and they should therefore be construed strictly. Dufief vs. Boykin, 9 La. Ann. 295.
In the instant case the clause in the contract above referred to, shows that the vendor was under the impression that unless he promised warranties endorsed on the agreement, he could not be held to any warranties. That clause was certainly. not an express waiver of warranties, nor can it be construed as an express waiver by the “clearest implication.”
Here, the warranty against eviction is not at issue, but the defendant company was nevertheless bound to his .warranty against hidden defects of the auto sold or its redhibitory vices. C. C. art. 2476, as there had been no waiver of that warranty.
The proof shows that the defect or vice in the auto made its use so inconvenient and imperfect, if not absolutely useless, it must be supposed that plaintiff would not have bought it, had he known of the vice. That entitled him to an avoidance of the sale, C. C. art. 2520, and to a restoration of the price'even if defendant, vendor, was ignorant of the defect. C. C. art. 2531.
“Unless warranty is expressly waived,” said the court in Crawford vs. Abbott Automobile Co., 157 La. 59, 101 So. 871, “the seller warrants that the thing sold is fit for the purpose intended,” and this rule applies to the sale of an auto “second hand or not.” In this case, which involved the sale of a secondhand auto, the foregoing rule governs. It is, at least, shown by the record that the auto was not in a running condition, and was not therefore fit for the purpose intended, as was held later, in Jackson vs. Breard Motor Co., Inc., 167 La. 857, 120 So. 478.
Judgment was properly rendered in favor of plaintiff.
For the foregoing reasons, and those expressed in the original opinion rendered herein, the rehearing applied for is refused.