I have no doubt that the sugar that was shipped by the defendant to Chicago, on the plaintiff's order, was of the same quality as the sample that was exhibited at the sugar exchange in New Orleans. If it were not so, the defendant would be guilty of fraud. The plaintiff does not charge fraud, nor does the court find that the defendant was guilty of fraud. The so-called low-grade sugar that was sold in this instance was what is called second, or perhaps third, sugar. Such sugar is not fit or intended for human consumption, except after being rectified and used in the manufacture of some other article of food. The grading of such sugar is a matter of expert opinion. That is why the doctrine caveat emptor is particularly applicable to this case.
The condition of the sugar when it arrived in Chicago was not a safe criterion as to what its condition was when it was loaded on the cars at Cypremort, La., nine or ten days before. The sugar was en route during the hottest days of the year, from July 30th or 31st to August 7th and 9th. Second sugars will not stand such heat that long without melting to some extent. The shortage in weight was due to melting and the draining off of the molasses, and was not out of proportion to the quantity of sugar shipped.
McNeill Higgins Co. v. Martin, 160 La. 443, 107 So. 299, was a suit for damages by *Page 731 one who had bought from the manufacturer a quantity of secondsugar, which, some time after the delivery, was found to be of a defective quality. In rejecting the demand, the court said:
"Second and third sugars are what their names indicate. The saccharine matter in the juice of the sugar cane will not all crystallize into sugar; that which will not thus crystallize becomes molasses, which is `the uncrystallized syrup produced in the manufacture of sugar,' from which it is separated either by draining, or by centrifugal force. Vide Century Dictionary, verbo, molasses; verbo, sugar, 2.
"When the molasses is drained or expelled from thefirst run of `raw' sugar, it takes with it in solution some of the sugar. When this is put through the sugar making process a second time, the proportion of molasses to sugar is of course much greater than in the first process; it is therefore more difficult to drain off or expell the molasses from these second sugars than from the first, and still more so as to third sugars, in consequence of which second sugars contain a much larger percentage of molasses than first sugars, and third sugars a still greater percentage.
"It is therefore not difficult to appreciate the correctness of the uncontradicted testimony in this record that second sugars, kept in barrels for several months in the summer time, would not at the end of that time hold true to samples taken at the time the sugar was put into the barrels."
The court held, point blank, quoting Rocchi v. Schwabacher, 33 La. Ann. 1364, as authority for the proposition, that it mattered not what the condition of the sugar was at the time and place of delivery, the plaintiff could not recover damages for the inferior quality or condition of the sugar, because of his neglect or waiver of his right — and his duty under article2521 of the Civil Code — to inspect the sugar at the time and place agreed upon for delivery. The court said:
"Moreover, even if the sugar had been, when shipped, in the condition in which it was found to be when inspected by plaintiff, nevertheless plaintiff still could not recover, for —
"`The buyer must use reasonable diligence to ascertain the facts. * * * An inspection, trial, or test, to determine whether the goods are of the quality specified, must be made within *Page 732 a reasonable time, and the buyer is guilty of laches, precluding rescission [or damages, Rocchi v. Schwabacher, 33 La. Ann. 1364], if he delays making such inspection or test for an unreasonable time.' 35 Cyc. 153.
"And accordingly —
"`In the sale of goods by merchants, who were not the manufacturers thereof, where there has been no deceit practiced, and where the means of knowledge were at hand and equally available to both parties, and the subject of purchase was alike open to their inspection, if the purchaser did not avail himself of these means and opportunities, he will not be heard to say, in impeachment of the contract of sale [or in claiming damages], that he was deceived by the vendor's misrepresentations.' Rocchi v. Schwabacher, 33 La. Ann. 1364.
"A fortiori no such claim can be entertained under such circumstances, when it is not even claimed that the defendant misrepresented the article in any way whatever."
If the plaintiff, instead of ordering the sugar shipped to Chicago without inspection, had inspected it at the place agreed upon for delivery — as the plaintiff had the right to do, and as it was the plaintiff's duty to do — either the plaintiff would have accepted the sugar, as being in his opinion equal in quality to the sample, or the plaintiff would have refused to complete the sale, and the defendant would have had the sugar to sell to some one else. There is no justice in allowing the plaintiff to deprive the defendant of his sugar by ordering it shipped 1,045 miles away without inspection, and then refusing to pay for it merely because a buyer in Chicago deemed it unfit for making mincemeat.
The point which is overlooked in the majority opinion in this case is that, in a sale by sample, there is no sale, but only a promise of sale, until the bulk of the goods is inspected and accepted by the prospective buyer.
According to the precise language of the articles of the Civil Code, and according to the doctrine prevailing everywhere, the plaintiff in this case assumed the risk that the sugar might not grade as high as the sample, when he accepted it and ordered it shipped without *Page 733 availing himself of the right to inspect and grade it at the time and place of delivery.
The decision in Hall, Kemp Co. v. Plassan, 19 La. Ann. 11, referred to in the majority opinion, is directly in point, viz.:
"Where merchandise is sold by a sample, the extent of the warranty is limited to the condition of the article sold at the time of the sale. * * *
"Where the commodity is by its nature subject to change or deterioration, and no fraud or concealment is shown, the buyer must show that the defect or deterioration existed at the date of the sale, or show that it was discovered as early as it was practicable to make an examination."
It is said in the majority opinion in this case that it would be impracticable to hold that an inspection of the sugar should have been made before or at the time agreed upon for delivery, because the place agreed upon for the delivery was 100 miles or further from New Orleans, where the agreement of sale was made and where the prospective buyer had his domicile. The distance is exactly 119 miles by rail, and the railroad almost parallels a model road, and a trackless transportation line. It would have cost less than $10, and less than that many hours, for a man in New Orleans to have gone either by rail or automobile and inspected the sugar when the defendant notified the plaintiff that it was ready for shipment. But what has that to do with the doctrine stated in article 2521 of the Civil Code, and recognized the world over? The article of the Code declares, and the universal doctrine is, that a sale of merchandise cannot be annulled for such defects as the buyer might have discovered by a simple inspection, and that, if the buyer takes the goods without availing himself of his right of inspection at the time and place of delivery agreed upon, he takes it at his risk. That is especially true when the buyer ships the goods to a distant market and thereby makes it difficult for the seller to prove the quality, and deprives him of his right to keep *Page 734 the goods if an inspection proves unsatisfying to the buyer.
The Court of Appeal, in reversing the judgment of the civil district court, in this case, announced the doctrine that article 2521, requiring a buyer of merchandise either to avail himself of his right and opportunity of inspection or to take the goods at his risk, was not applicable to a sale by sample. The majority of the members of this court, as I understand the majority opinion, are not willing to accept that doctrine. There is no reason why it should be accepted, for there is no reason or authority for it; and the language of article 2521 of the Civil Code is particularly appropriate to sales by sample. The Court of Appeal cited as authority Barnard v. Kellogg, 77 U.S. (10 Wall.) 388, 19 L. Ed. 987, and Pope v. Allis, 115 U.S. 363, 6 S. Ct. 69, 29 L. Ed. 393. Barnard v. Kellogg is authority only for the proposition that, in sales by sample, where there is no opportunity forinspection, the doctrine caveat emptor does not apply. In Barnard v. Kellogg, the sale of a quantity of wool in bales, of which the seller furnished samples, was held to be not a sale by sample, because the buyer was offered an opportunity to inspect the wool, and did not avail himself of it. The court said:
"No principle of the common law has been better established, or more often affirmed, both in this country and in England, than that in sales of personal property, in the absence of express warranty, where the buyer has an opportunity to inspect the commodity, and the seller is guilty of no fraud, and is neither the manufacturer nor grower of the article he sells, the maxim of caveat emptor applies. Such a rule, requiring the purchaser to take care of his own interests, has been found best adapted to the wants of trade in the business transactions of life. And there is no hardship in it, because if the purchaser distrusts his judgment he can require of the seller a warranty that the quality or condition of the goods he desires to buy corresponds with the sample exhibited. If he is satisfied without a warranty, and can inspect and declines to do it, he takes upon himself the risk that the article is merchantable. And he cannot relieve himself and charge the seller on *Page 735 the ground that the examination will occupy time, and is attended with labor and inconvenience. If it is practicable, no matter how inconvenient, the rule applies. One of the main reasons why the rule does not apply in the case of a sale by sample, is because there is no opportunity for a personal examination of the bulk of the commodity which the sample is shown to represent. Of such universal acceptance is the doctrine of caveat emptor in this country, that the courts of all the States in the Union where the common law prevails, with one exception (South Carolina), sanction it."
Pope v. Allis is authority for the proposition only that, where goods are sold to be shipped to a distant place, the buyer's right to inspect the goods and to reject them if they are not of the quality represented may be exercised at the place agreed upon for delivery of the goods, and that he is not required to inspect them at the place where they are delivered to the common carrier. The court said:
"Where goods of a specified quality, not in existence or ascertained, are sold, and the seller undertakes to ship them to a distant buyer, and, when they are made or ascertained, delivers them to a carrier for the buyer, the latter, on their arrival, has the right, if they are not of the quality required by the contract, to reject them and rescind the sale, and, if he has paid for them, to recover back the price in a suit against the seller."
Accordingly, if the contract in this case had called for a delivery of the sugar in Chicago, instead of the delivery f.o.b. cars at the Cypremort plantation in the parish of St. Mary, the decree which the court has rendered would be correct. Maillard v. Nihoul, 21 La. Ann. 412.
"There is also in a sale by sample an implied condition that the buyer shall have a fair opportunity of comparing the bulk with the sample, and a refusal to allow this, will justify the buyer in rejecting the contract. Benj. Sales (Bennett Ed.) § 649." H.B. Claflin Co. v. Mayer, 41 La. Ann. 1048, 7 So. 140.
The Supreme Court of the United States, through Mr. Justice Field, stated the doctrine *Page 736 plainly and emphatically in Slaughter v. Gerson, 80 U.S. (13 Wall.) 383, 20 L. Ed. 628, viz.:
"This misrepresentation which will vitiate a contract of sale, and prevent a court of equity from aiding its enforcement, must not only relate to a material matter constituting an inducement to the contract, but it must relate to a matter respecting which the complaining party did not possess at hand the means of knowledge and it must be a misrepresentation upon which he relied, and by which he was actually misled to his injury. A court of equity will not undertake, any more than a court of law, to relieve a party from the consequences of his own inattention and carelessness. Where the means of knowledge are at hand and equally available to both parties, and the subject of purchase is alike open to their inspection, if the purchaser does not avail himself of these means and opportunities, he will not be heard to say that he has been deceived by the vendor's misrepresentations. If, having eyes, he will not see matters directly before them, where no concealment is made or attempted, he will not be entitled to favorable consideration when he complains that he has suffered from his own voluntary blindness, and been misled by over-confidence in the statements of another. Volenti non fit injuria is the maxim in such cases in all courts. * * *
"The doctrine, substantially as we have stated it, is laid down in numerous adjudications. Where the means of information are at hand and equally open to both parties, and no concealment is made or attempted, the language of the cases is that the misrepresentation furnishes no ground for a court of equity to refuse to enforce the contract of the parties. The neglect of the purchaser to avail himself, in all such cases, of the means of information, whether attributable to his indolence or credulity, takes from him all just claim for relief.
"We have thus far assumed that the evidence in the case before us discloses false representations on the part of the vendor, but justice to him requires us to say that the evidence is insufficient to warrant this conclusion."
I cannot reconcile the decision rendered in this case with the provisions of the Civil Code on the subject, or the doctrine of caveat emptor, as applied by the other courts throughout the country, and as recognized by every law writer on the subject of sales. *Page 737