On Application por Behearing.
McGloin, J.An earnest application has been made in this case for a rehearing. It is complained, that inasmuch as defendants bought two hundred casks of one hundred jugs each, they were entitled to a delivery of twenty thousand jugs, and could not be compelled to receive less. The principle contended for is correct, that a purchaser cannot be compelled to accept less than that for which he has contracted 5 but we do not consider it.applicable to a case like this. Defendants did not purchase twenty thousand jugs of Seltzer water in so many separate packages, but they bought two hundred casks, each to contain one hundred jugs. The law, in cases such as this, is not intended to govern arbitrarily, but simply to regulate such transactions in default of contracts express or implied. It is *197shown that Seltzer water is universally packed in the manner in which the water in this case was put up; that it is so packed in Prussia, and has to bear transportation from thence. The commodity is a cheap one, and cannot bear an expensive method of preparation for shipment. The style of packing is universally known. It is shown that it is an impossibility to transport these casks of stone jugs without some breakage. All of these facts must have been known to defendants, and they must be held to have contracted with reference thereto. If their position be well taken, it would be a matter of impossibility to make binding contracts of sale, so far as goods of this character are concerned, inasmuch as, if any of the jugs were broken during transportation, as must be in . every instance, the vendee would be at liberty to repudiate the contract if he chose so to do.
Had the purchase in this case been of two hundred blocks of ice, of a ton each, the purchasers could hardly maintain that they were not aware of the fact that ice melts, and demand a rescission of the contract under the authorities they have cited, because, in transit, the ice had lost some of its original weight. Defendants have not asked a diminution of price, and so we were not called upon to determine who should bear the loss from breakage in such cases, but we do declare it to be our -opinion that the circumstances disclosed do not warrant the demand for rescission.
It is complained that this Court did not notice the defense that the 110 casks in question were not set apart, but were sold confusedly with two other casks, making 113 in all. The notices to defendants, the advertisements and other evidence, shows that 110 casks were tendered and stored, and subsequently sold at defendant’s risk. To destroy this defendant relies upon the bill or statement of the auctioneer, showing sale of 113 ■casks at a certain price per cask to Schmidt & Ziegler. It is not shown that there were not two offerings, one of 110 casks, .and the other of two casks, which being to same purchaser, at .same price, were put in one bill. A simple statement or docu*198ment like this, which seems to have escaped special noticehelow, and which does not purport to furnish a detailed history of the transaction, with reference to which transaction the defendant has not chosen to give us the particulars, will not warrant us in disregarding the other evidence.
It is also urged that after plaintiff had stored the Seltzer-water at the risk of defendants, the .goods were, in fact, their property, and plaintiff had no right to sell, as he has done. It does not follow, upon every such storing, that there is a divestiture of the seller’s right of possession until payment. After-default the goods were at the risk of Smith, Brothers & Co., La. Civil Code, Arts. 2467, 2468, 2469, but plaintiff was under no necessity of allowing them to remain upon the public-landing, or even to encumber his store, if he had had one. La. C. C., Art. 2469. He was at liberty to place them on storage in a safe and proper place, as for instance in a public warehouse, notifying the vendee of the fact, and that the goods are still at his risk. This was all that plaintiff did in this, case. His agents still retained control of the property which stood in their name at the warehouse. Had the property been there stored, in the name of Smith, Bros. & Co., and they notified accordingly, then there might have been, by plaintiff, a surrender of the right of possession, until payment, granted by La. Civil Code, Art. 2487. In such a case, perhaps the sale at auction might have been a re-taking by plaintiff of the goods; but in this case, there was nothing of the kind.
Eehearing refused.