The judgment of the court was pronounced, by
This case'presents a reelamation-by plaintiff, arising out of'a purchase of pork made by him from the'defendants. Of the quantity purchased, about one-half proved to be unsound.- The plaintiff claimed the difference in value exhibited by an auction sale of the'unsound, made about three weeks after the sale, as compared with the alleged market value of a sound article ; and also- damages for the charges and expenses incurred by its shipment to his correspondent in Mobile;- who sold w small part of the lot there, and upon discovering the unsoundness reshipped it to* the plaintiff. The total claim was for $480. The-district judge-gave a judgment for $180 73; and the defendants appealed-.
The purchase was made on the 21st January, 1847. The plaintiff immediately shipped the pork to Mobile, and, on the 30th January, sold a few hogsheads to a party, who bought without examination, on the representation of plaintiffs agent; but, on opening it a day olf two afterwards, the purchaser discovered it to be in very bad condition, and an allowance was made to him of about seventy-five per cent. The agent reshipped what was unsold to plaintiff, who had it-examined, and finding about half of it to be unsound, tendered the unsound portion to the defendants, and demanded- the proportional return of the price. This offer the defendants refused, unless plaintiff would return the whole. A very great advance in the market value had taken placa- in th&interval. The plaintiff then had-the-damaged-portion-sold at auction, and it produced a prise a little below what he paid the defendant.
There were several- witnesses examined before the district judge, two of whom say that the pork had been offered to-them before the plaintiff bought, and they refused tb buy, being dissatisfied with its condition. One of them declares expressly that, it was a very bad lot and-unsound. Another, that he found several'pieces damaged, and refused for that reason to buy. It results conclusively from the evidence that,-the unsoundness existed at the time of the sale; an® that even if some portions might not have been actually unsound at that time, they ultimately became so-from bad curing.
The defendants have placed their principal reliance on- the testimony ef their broker, who was- called as a witness by the plaintiff. He states that the pork-was in hoghsheads, which were headed up, except those which were examined-by himself and the plaintiff’s clerk. They tried these, and found their con-tents sound. He represented, at the time, that every piece had been- examin-ed by an experienced and skilful agent for the defendants, with the view of its-being shipped to England, and every piece was sound and in order. He also-slated to the plaintiff, as one reason why the defendants had- been prevented from shipping the pork, the high rate of freights. The witness further stated that he offered the plaintiff's clerk to open as many hogsheads as he desired, but he declined having any more opened, and expressed himself satisfied with what he liad seen, saying that he was a good judge. He further deposed that, on *379Iiis statements and the clerk’s examination, the plaintiff purchased without further guarantee, and that there was no attempt on his part, or those of his principals, to conceal or misrepresent.
There is no reason to doubt that his representation did have the effect of discouraging further examination; and, although there was no express stipulation of warranty, it is clear that there was no exclusion of it. We consider the representation as excusing the plaintiff' from a more thorough examination of the article; and we attach more weight to the representation acknowledged to have been made, from the fact established by another witness that, the broker who made the sale to the plaintiff had offered the lot to another pauty, who declined the purchase because he found some pieces damaged.
As there was no express exclusion of warranty, the warranty implied by thp law attached to the contract. The doctrine of caveat emptor, as known to the common law, even if it would go so far as to relieve a vendor from the effects of such a representation as was made in the present case, cannot be invoked against our own express legislation and jurisprudence, which recognize the implied warranty of quality as well as of title. Civil Code, 2451. It is said, however, that the implied warranty does not extend to apparent defects, which are defined by our Code to be such as are apparent by simple inspection.” This is true. But the enquiry remains, what are apparent defects? How far is it to be considered applicable to the sale of merchandize packed in such a manner, or otherwise so situated, as to make its thorough examination inconvenient? See upon this point, Duranton, vol. 16, lib. 3, tit. 6, §310, and the opinion of Judge Watts in Millaudon and Morgan v. Price and Frost. We do not however, think it necessary to say whether, under ordinary circumstances, the defective character of the merchandize in question, which was in closed casks, was an apparent defect within the fair intendment of the Code, that is to say, whether it was the buyer’s duty to protect himself by having the casks opened, and then to notice not only the patent unsoundness of portions of the pork, but the defective curing which would ultimately result in unsoundness of other portions. It would clearly be carrying the exception as to apparent defects too far, to extend it to a case in which a representation was made calculated to quiet the vigilance of the .purchaser with regard to merchandize packed in casks, and the inspection of which was attended with some inconvenience. A witness, who was in the employ of the defendants, states, that he had examined the merchandize before the defendants bought, that he rejected some portions, and that the lot, as selected, was sound, and was all carefully repacked with additional salt. This testimony relieves .the defendants from any moral imputation, but cannot destroy the legal effect of the representation made to the plaintiff by their broker. Nor can we consider that the witness’ opinion as to the quality of the pork overbears the testimony of the other witnesses as to the unsoundness of a portion of it, which, we think, is conclusively established.
But it is said that, when the plaintiff was dissatisfied- with the sale, he should have tendered the return of the whole, and had no right to keep the sound part, reaping the profit of an improved market, and returning only the unsound. The rule that the rehibitory vice of one of several things sold together gives rise to the redhibition of all, applies to a limited class of cases; those where one of the things would not have been bought without the other. The illustrations given in our Code are, a pair of matched horses or a yoke of oxen. The rule is obviously a reasonable one, and we have.borrowed it from the roman law. Quvtm autem jumenta paria veneunt, edicto expressum est ut, cfim alterum in *380e& eausk sit ut redhiben debeat, ulrumque redhibeatur; in quá re t&m emptori quam venditori consulitur, dum jumenta non separantur. But when the things are independent of each other, the redhibitory action lies for that which ' is affected with the redhibitory vice. The example given by the civilians is, a •lot of unmatched horses or a flock of sheep. If one proves to have been the partial dissolution of the sale is permitted. See Duranton, vol. 16, § 319. Troplong, Vento, 578. Voet, lib. 21, tit. 1, de J2dil. edict. It is to be observed, however, that this is not strictly an action of redhibition, but of quanti minoris. The plaintiff desired to exercise the right of redhibition, but was prevented from doing so by the refusal of the defandants.
The plaintiff' has asked an amendment of the judgment in his favor, but as the application was not.seas.onably made it .cannot be considered. C. P. 890.
Judgment affirmed.