
    By Ht» PauiJ;
    No. 7684
    Planter's Cotton Oil Co. vs W. F. Klumpp
   St Paul J:

IIiIb is a ulaim for damages for alleged breach of contract Defendant oougnt of plaintiff for future delivery, £00 bales of ^"mill-run cotton linters, made from clean, iound seed, and free r from country damage -- subject to inspection and acceptance by buyer’s representative."

When the time for delivery arrived, defendant sent an experienced inspector to examine the Winters as tendered, and this one inspected and sampled them in the usual way, and in the presence of plaintiff’s representative. He pronounced them not up to grade, i.e. not clean "on account of paving sweepings in the bales and Doing nappy and moty;" and ne therefore rejected them.

I

(There was evidence introduced Dy plaintiff, over defen-uants oojeetioiijtnat "parol evidence was inadmissible to vary or .contradict the written contract,” tending to show that the linters were fully up to grade, and even above; and incidentally that the market price of lintera had declined between the purchase and the tender.

II

If the purpose of this evidence was simply to show that tne iinters were up to grade, and therefore should not or could not have oeen rejected under tne contract, tnen tn« oojection was (substantially) well founaed; since it was wholly irrelevant to the ' only issue involved, as .vili hereafter be shown. ffor the oojection must of course oe rts^a in-the light of tne ana ver; to wit, that defen dant, "having purchased subject to inspection add acceptance", ana having actually inspected and rejected (in good faith) could not t • be compelled to receive the Iinters '/mien, in his Judgment (honeatiy ,Zeroised) "were not of the grade stipulated', and wnich in that reaped at least, did not meet "the requirements of-the contracts

In seeking the meaning, and weighing the merits, of an objection to evidenoe, oourts should not hang upon the bare words used, and- by narrowly adhering to them miss the true and evident meaning of the pleader. As. with other pleadings, it suffices if the words used "enable the oourt to see the meaning"(4ljdyu p Vo, ana notes 2S5&94)

If on the other hand, 'the purpose was to show that defendah rejected the Iinters arbitrarl^fgn.>iwe the market had declined, ^then we can only say that such evidenoe, standing alone (as it does) will not suffice to establish what, in effect,, amounts' to a - charge of bad faith on the part of defendant; for fraud and Dad faith are not to be presumed lightly. We are satisfied that in this case there was only an honest difference of opinion.

Ill

The contract herein sued on is subject to one £©=-three interpretations:

Is By attaoning slight importance to that clause of the contract r eading, "suoject to inspection and acceptance oy Duyer's c.v representative”; that is to say, by disregarding^ expunging these A words, we might reach the very obvious conclusion tnat tne contract called simply for "Jei£l~run cotton linters, ¿mac' from clean, sound seed, ana free from country aamageVj/

Z: Or, by aahereing grossly to tne naxea words, "subject to inspection and acceptance by Duyer's representative,” we might give the contract the very harsh construction that defendant might arbitrarily dissolve nis own obligation: and tn-at though plaintiff nad meant to oind itself in good faith, yet defendant nad not meant ot oind himself at all, and hAD *10T ])0i£3 oO.

Z: Or, oy retaining tne .70rds "subject to inspection and inspection and acceptance, oy npyer's representative,” and giving tna an^ interpretation consistent witn law ai*d equity, ana custom and «- common sense, w« mignt reaeh .vnat ve oelieve to have oeen the true intention of th* nnrtias.

IV

We uannot expunge from a contract words deliberately put into it oy the parties thereto, and therefore presumably intended to have some effect, when the words themselves are capable of receiving a meaning not destructive of the contract itself, aafcd tending but to mollify the obligation thereof. To expunge them would be to mags a contract not to interpret one; and hence would oe beyond the judicial power, whose functions extencjao\ further than to interpret and enforce the obligations whicn tne parties tneinselves have stipulated for on one side and undertaken on the other. This is too elemintary to permit bringing forward of authority.

V

We cannot give to tne contract tnat harsn construction wnio. would give the defendant tne the right to withdrew from it aroitrnily, tnat is, by the sole exercise of nis will. ifor tne parties evident ly meant to eriíer into some find of binding agreement; aud to iive their agreement tnat Construction^would oe to strangle it at its Very Dirth.

Our own law on the subject is statutory. ¿very obligation •is null, la/hioh naa been contracted upon a condition dependent for ife napperiing \ solely on the exercise of the obligors will C. 0. L0o4,

And tne general l'>w is quite co the same effect, viz, A promise whicn is made conditional upon the will of the promissor is of no value; for one who promisees to uo a thin,? only if it pleased him to do it, is of course not oound to perform itA (90yo. 1. ¿16,& notes ¿--4; Verbo; contracts)

It is therefore the manifest and imperative duty of this ■ court to see* some interpretation,wwhich wnilat it leaves intac^ and gives eifect to, the very words used oy the parties, yet at the same time respecta tneir evident ana expressed purpose to give some ¿ind of binding force to the agreement itself. £hus, wnere an agreement is ousceptiole of two meanings, one of which^uphold and render it «/alia as a contract, and the otner will destroy and render it invaiid^ceagposit ,^ut res maj is valeat auam pereat". Oyyc. p 5b6, and note o4; Verbo, contracts. also Steppach vs Norms, 7 Orleans App. 214).

VI

And tnia agreement is capable of receiving an interpretation which will both give effect to the 7orus used and at tne oame time save tno binding fo-rce thereof intended by the parties. ü'or j^conclua aion reached in good-iaith uy tne e^rdse of one's judgment on a particular matter, is not dependent solely on one’s will or pleasure.^ hence a contract with a condition which depends on a bona fide exercise oi judgment oy one of the parties about some of tne particulars, is not open to the objection tnav it depends on an event -which rt is within the (lavful) power of that party to prevent; Sheppach vs Norms, 7 Orleans App. 214.

Accordingly in contracts in which the promiasor agrees to pay for goods , or laoor, "providea^/ie is satisfied," the obligation is binding. But there ia auaolute unanimity of judicial opinion tnat the promissee is "nrautially deoarred from questioning tne decision of tne promiasor, or investigating it3 propriety." For the courts refuse to say that ne can oe compelleu to pay on that someone ilse is satisfied; since they recognize that in matters Sf taste or judgment there is no absolute standard. (S^yc. das, ano notes 6-16 Verbo, contracts).

■Hence in a oomewnat similar case our Supreme Court nas decided tnat '/mere the juagment of an architect in the emplo^kf one one of tne parties, was to govern in interpreting tne specifications, 'i.e. in determining wnat material and workmanship would be satisfaota^'^ and acceptable, etc., nis opinion “^based on knowledge-of the situation and honestly given" is oonoiusive (that ia to say,in tne aD3ence of fdUhd or groa3 and palpaole error) Carre vstfeijp, loo la. Co, to, W.ábaUi (U-Aw-életUíorv, /Jór2S<d.

7 It

It ia ur^ea tnat in Jochams vs Ong, 45 An 1289, our ¿uproiuc court tooic a uifferent view of a. sonewnat similar contrast* '.V« do not|thinn: so. In the first placa tnat case ninfea entirely upon unotner point, to .vil, .vnetner defendant was or was not justified in refusing to accept a delivery; which in turn ninged upon the question whitner sucn a delivery was or -was not to invest him with the right to sell. But the question in this case 414 not, an4 ooul4 not arise in that. Thus the' 4efen4ant hai bought’, oertain cement on oón4ition that he would be "satisfied by a test" that it was of a oertain strength. He himself, then sent samples to a person of hi3 own selection and competent make the test; and that expert (his own chosen representative) found the samples fully up th the requirements of tne contract. So.that that feature of the recitals given by the court, was iither striotly narrative or purely "a propos de bottes," for it weighed not a feather's wéight in the decision of the case, and was not even involved.

VIII

Of course tnis contract, having oeen entered into in tne State of Texas, must be interpreted oy the laws of that oommonjwealth; but in the absence'of some statute or particular jurisprudence from that jurisdiction we are bound to assume that the law there is tía tne same as in our own, or at least, that it does not differ from tne general jurisprudence prevailing here and elsewhere.

Two decisions of the Texas courts are called to our attention, which are said to establish a different rule. But to us tnis does not appear. Thus, in Taussig vs Tobacco Growers' Ass'N, 128 S. N. Rep 444, no more was decided than that where goods were sold .simply of a certain grade, the purchaser could not require sometning additional to satisfy nimself; the rigat to reject after inspection because unsatisfactory to himseli/was not given in the cont» raot# ¿0 that ,no. application whatever#

Aaron vs Smith Co, 100S. W. Rep 347,, involved a sale of sugar Cor future delivery* 1‘he seller was to furnish samples and if these pi'cvod unsatisfactory to the buyer, sa.:.e should be submitted to arbitrators. Thereafter (it was claimed) the ter«.3 of the contract ■•/ore changed, whereby the seller was simpj.„ oo guarantee that tne sugar should be of tne quality called for by the contract. The court held that the change (if made) dispensed with tne naeoessity of submitting samples, add^ihenoe) if the si-g r wo up to grade it was breach of contract to refuse to receive it. And the issues submitted to the jury .vero therefore, t\ .Vhether sucn a change was actually made, and 2: 'Vhether the sugnr tendered was up to grade. 3ut tile cour.t did say, "If thiá change in the contract was made-we think that necessarily it would require the sugar to be received without such samples. If samples-were to be sent to the purchaser and examined by him, and in case of disapproval by him (re-examined) by the arbitrators, there would nave been no necessity for the guaranty. " tíee p. Í54H, Oodjs, in fine. u'rom which we conclude that the Court of civil Appeals conceived the law of Texas to be no different from the general doctrine above stated (.Section "S3)

IX

Hitherto we have not made mention of Article 2400C. reading as follows: "Tilings of which the buyer reserves to himself the view and trial, although the price be agreed upon, are not sold. until the buyer be satisfied vvitn the trial, which is a kind of suspensive condition of the sale."

Indeed we were loath to interpret a Texas contract by any statute (perhaps a purely arbitrary on») of another state, on the theory (and the only justifiable one) that the statute had entered into the contract from its inception; for we are dealing not with a remedy but with a substantial ri^ht acquired by contract. nence we preferred to proceed upon principles universally accepted.

But lest it be thought that we adopt the contention (or suggestion) of defendant, that until acceptance, i.e. approval, of of the thing sold ( iiat^the contract) by the buyer "no obligation exists and the contract is without effect," we take occasion to say that our statute is not to be so interpreted. For whilst it declares that the thing is not sold until the buyer be satisfied, it very distinctly indicates that this satisfaction vel non must resuljr from a trial "which (satisfaction wel non after trial) is a kind of suspensive condition of the sale."

Now the authors of.our cA&e knew full weil the difference between the potestative condition, which depends on the sole will of a party and emasculates the agreement ^(J. C. 2024, 2034, 2035^) and the suspensive condition, which merely’holds it in abeyance (S.C. 2043) : and therefore when they made use of the latter term in declar ir„g the tiling not sold, they meant simply that the effect of such a sale should be regulated, riot by articles 2456 and 246^0.0., but by article 2044^/.,. ; to wit, that tne thing thus sold does net become at onc^ the property of the ouyer so as to remain in the meanwhile at the buyers risk; but that on th* contrary the sale is not yet üompleí¿p* and perfect, and thus the thing continues 3till the property of the - - \ r * ' • feller and remains at his (thejeot however to his obligation to deliver it if the buyer oe satisfied with the trial. See also C.Ü. 2453, 2459. . Of course' if tne seller refuses to allow the trial, or the ouyei refuses Lo mame it, there is then a breach of contract, which at once* gives rise to a claim for damages'. Rightor vs Aleman, 4 Rob 45; Steppech vs Worms, 7 Orleans App2l4 .)

¿o that a purchase made subject to trial and approval is not a mere nudum pactum, but does engender between the parties a binding obligation (though not perfect sale) for the breach of which oy either side courts will afford a remedy. In other words, Article 2460 C.C, is nothing but the announcement in statutory form of the principle of general law set forth in Section JTI^oC^.this opinion and carried-into our head-notes as Nos.' 4and 5. -See Dalloz, C.N. Art. 1588; Baudry - Lacantinerie, Vol, 17 Nos. 154, 157, and 164, to 171.

X

Holding these views, we tninic the judgment of plaintiff's represe .tative (whose compehenoy^there is no reason to dou'ot) must A-prevail; that by the terms of the contract plaintiff cannot^com- . pelled to accept the opiüjion of others, no matter hov competent or how disinterested they he.

The judgment appealed from is therefore reversed, arid it is now ordered the plaintiff's defiand he rejected at its costs in botn / ' courts.  