*380OPXHION
Dax Dlnkelspiel. Judg»-This suit presente the oase of a party purchasing at an auction sale advertised in the newspapers of thiB oity substantially as follows:
That defendant was retiring from the dairy business; 'that as fine a lot of cows for dairy purposes would be soid as ever put up at auction; that the auction would be conducted by Louis J. Sehiro, and the sale take place December 4, 1917, at defendant's dairy, and that Slhiro advertises only that which is so.
Ihe advertisement appeared in the Times-Pieayune, of this oity- Plaintiff attended the sale on the day in question and purchased 2-1 head of cows, for the price and sum of $1234.00. Each particular cow was sold, not in globo, but separately. Ihe following day, Deoember 6, 1917, a tuberculin test was made, and on December 6th 16 of the oows reacted to the test and were found to be tubereuler, ordered placed in quarantine on the premises of defendant, by authority of the Live Stock Sanitary Board, as created by Act 274 of the Qeneral Assembiy of 1908, and this board gave notice to defendant that the infected cattle oould not be moved from the premises except for the purpose of immediate slaughter.
In order to minimize damage, with reservation of the respective rights of their clients, the lawyers agreed to an immediate slaughter of the 16 tubereuler oows, and also to a sale by auction of the 6 oows that did not react - that is, that were found not to be infected. The 16 condemned oows were slaughtered and the 6 non-eondemned sold anew. Ihe price realized from the slaughter of the 16 infected sows was $315.53, and from the sale of the 5 non-lnfeeted cows $180.00.
*381Ibera Is, therefore, hut ose Issue raised. In the answer of the defendant, and that is whether or not the auatloneer did or did not announee from the block, at the time the eons were sold, that the sale would he without warranty, save as to title, and, If sueh an announsement was made, was warranty against redhibitory Tioes excluded thereby?
The oows were advertised and sold under the advertisement as dairy sows. Tuberculosis Is not such a vice as could have been discovered by a simple Inspection. The article of the Civil Code touching this question le Article 25E0, reading as follows:
"Redhibition Is the avoidanee of a sale on account Of some vice or defect in the thing sold, which renders it either absolutely useless, or its use sc inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice."
In the earlier decisions, under the old Article 2496 (now 2520), we find, in the case of Melancon v. Robichaux, 17 La. Reports, page 27 (quoting from the syllabus):
"Where the thing sold turns out to be so defeotiwe that had the defeats been made knwwn to the purchaser he would not have bought, the sale will be rescinded."
In the 18th La. Reports, the case of Turner and Renshaw v. Wheaton et al., reading from the syllabus, at page 37:
"The exclusion of warranty in a sale does not absolve the vendor from the obligation of disclosing redhibitory vices not apparent."
In the 10th La. An. Reports, J. E. Robertson et al. v. Sarah Wallace, Administratrix, at page 214, - again quoting from the syllabus:
"When a sale of slaves is made without any declaration on the subject of warranty, with the statement at the time that they had been burnt, but accompanied by the further, statement that they had recovered, the sale must be eonsi-dered as made subject to the usual warranties against redhibition."
*382In the 18th La. An. Reports, at page 133, - Widow A. Morphy v. P. C. Blanchiel, - we find:
"Redhibition ie called the avoidance of a sale on account of some vise or defeat la the thing sold, whloh readers 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 tiee."
In the 121 La. Reports, at page 72, the case of Iberia Cypress Co. Ltd. v. Von Schoeler, which was a suit on a note of $2,000.00, payable at the First Rational Bank of Franklin, Leuisi-ana, with &f> interest, etc., the defense being reduetion of prl*e on account of redhibition, the syllabus reads;
"Where the purchaser, of a steam tag sued in reconver-tí on for reduotlon of the prlee to the extent of $1,000.00, on aoooont of concealed defects In the hull and aaohinery of the boat, REID, that having elected to keep the vessel, he cannot recover for repairs made thereon, or for damages, but is restrleted to his claim for reduotlon of the prlee.
"In a suit for reduotlon of prise, the responsibility of the bona fide vendor is measured by the difference in value between a sound and uhsound article." (Quoting authorities).
In the Case of William Parairque v. Jaetano Ortolano, to be found in the Court of Appeal Reports, Vol. 13, p. 165, the court says, quoting Civil Code, Art. 2532:
"If the thing affected with the vices has perished through the badness 'of its quality, the seller must sustain the loss."
Again:
"When the disease has manifested itself after three days the burden of proof is on the buyer". (Quoting authorities)
Under the artioles of the Civil Code, and particularly Article 2520, and the authorities, there can be no doubt but what the 16 head of eattle ordered slaughtered by the Board of Health under the law were infeoted with tuberculosis. Ihe 6 other head were free of the disease, and, being sold under an agreement between the parties, the-price of $180.00 wliioh thqp brought and about-which there is no aontaatienmust be deducted from the total *383amount plaintiff paid-for the oattle at the sale, tpwit, $1234.00, leaving a balance of $10tidfb0■whioh the plaintiff is entitled to he reimbursed, under the agreement made between the parties.
1919.It is therefore ordered, adjudged and decreed that the judgment of the court ja quo be annulled, avoided and reversed; and, proeeeding to render such judgment as should have been rendered, it is further ordered that the plaintiff, John Eglln, recover
from?the defendant, Hippolite or Hjpolite Rufin, the full sum //• /Of£>o of $iOB4Í 0o7~wlth costs in both oourtB.
Hew Orleans,