
    DECUIR vs. PACKWOOD.
    East'n. District.
    Jan. 1818.
    If one purchases a crop of sugar, after viewing it, he cannot claim any abatement on account of its inferior quality.
    Interest is not to be given on the amount adjudged by the jury, from the judicial demand, when the purchase was in notes at two, three and four mouths.
    Appeal from the court of the parish and city of New-Orleans.
    The plaintiff, claimed the payment of a crop of sugar, sold and delivered to the defendant. The answer admitted the sale and delivery, but stated that, after the shipment of the crop, it was discovered, that the sugar was of an inferior quality, and different from what it had been represented to be : wherefore the defendant claimed an abatement.
    Before the trial in the parish court the defendant prayed for a commission, for the examination of witnesses in Savannah, in order to have the sugar viewed and its quality ascertained. He admitted that the sugar had been bought through the agency of his own broker, who went up to the plaintiff's plantation to see it, and on whose report the bargain was conclud- ed, and the discovery of the quality of the sugar was made, before the ship sailed from New-Orleans. The parish Court refused the commission, whereupon the defendant took his bill of exceptions.
    The sugar was to be paid in the defendant’s notes, at two, three and four months. The price was not contested. There was judgment for the plaintiff, for the amount of the sugar, with interest from the day of the judicial demand, The defendant appealed.
    
      Moreau, for the plaintiff.
    The parish court acted correctly, and within its powers in deny- ing the commission. The grant and denial of it, was a matter perfectly in the discretion of the court, whose duty it was to refuse it, if the testimony, intended to be obtained, was not per- tinent to the cause, or might have been procur- ed here. Phillips 11. It is admitted, that be- fore the sailing of the ship, the pretended bad quality of the sugar was discovered. It defendant's power to have it ascer- tained on the spot, and in the presence of the vendor. Having suffered the ship to sail, it is now too late to demand, that witnesses may view the sugar in Savannah, and depose as to its quality.
    It is inevidence, that the defendant purchas- ed from the plaintiff 162 hogsheads of sugar, viz. 140 at 10 cents per pound, the rest at 9. If he has a right to any abatement, it must be because the sugar was represented as of a better quality than it was, or on account of some deceitful practice, by the defendant. Code Civil 381, art. 61.
    Now it isin evidence, that when the defendant's broker applied to the plaintiff's agent, he informed him, he knew nothing of the quality of the sugar, and advised him to go up and view it-that twenty-two of the hogsheads be- ing of an interior kind, one cent per pound was abated thereon.
    Inferiority in thequality of sold is not a redhibitory vice. The law gives the redhibitory action, only in cases in which goods are sold, which are of no use: as linen which is rotten, barrels which have so bad a smell, as to spoil any liquor put therein. 1 Pothier, put therein. 1 Pothier, Vente, n. 205 & 206. Ferriere, verbo Redhibition.
    A difference in the quality of the goods, when the quality was not declared and warranted, does not give rise to the redhibitory action, because every one may sell as dearly as he can, provided he uses no deceit. But, if the vendee he deceived in the quality of the thing, which it is customary to examine before the sale, he cannot avail himself of his neglect, in order to have the sale rescinded, or the price diminished. Pothier, id. n 207. 2 D'Aubenton's Obligations, 27, 28. Abrege des lois civiles de France, 550.
    
      Hennen, for the defendant.
    The judge below erred in refusing the commission to examine witnesses, because the affidavit, on which the application was made, brings the defendant's case within the rules of the court, and the spirit as well as letter of the former decisions. The question is not whether, by putting himself to great expense, the defendant might not have obtained the same evidence, he now wishes to reach; whether he might not have delayed the sailing of the vessel, and had the examination of the sugar made here; nor, whether the evidence, if produced, would avail him completely in his defence. Has he disclosed in his affidavit, such facts as entitled him to a commission? I think he has.
    As to the merits of the case, it is in evidence that the defendant paid the highest price for sugar of prime quality. And I maintain it to be the doctrine of our civil code, derived from the Roman law, and sanctioned by the principles of morality and honest dealing, that a sound price warrants a sound commodity. 1 Domat 80, Whitfield vs. M'Cleod, 2 Bay 380, Cooper's Institutes, 609. ff. 19, 1, 13, id. 45, 1, 36, 1 Pothier's Pand. 71, n 13.
    Our own statute sanctions this principle, and binds the vendor to a warranty of hidden defects, Civ. Code 357, art. 68. Sugar is an article, as liable to such defects as cotton, or any other species of produce. Notwithstanding the purchaser used all care to avoid imposition, if in fact he has been deceived, the vendor is liable. The defendant, therefore in this case, is entitled to an abatement, a dimunition in the price agreeably to the deficiency in value, ascertained by several witnesses, whoso depositions form part of the record, if this court be not of opinion with us, that the case ought to be remanded, with directions to the judge, to order the commission to issue, as it was praved for.
    Lastly, the court a quo erred in giving judgment, for the sum assessed by the jury, in their verdict, with interest from the date of the petition. It is in evidence, that the sugar was to be paid for, not in cash on delivery, but in the defendant’s notes a sixty, ninety and one hundred and twenty days. If interest was to be allowed at all, it could not be made to run before the expiration of these periods. Indeed no interest ought to be allowed at all: for the plaintiff’s claim was liquidated by the verdict only.
   Derbigny, J.

delivered the opinion of the court. The commission, we think, was rightfully refused. Supposing that the proof of the inferior quality of the sugar could avail the defendant any thing, its quality at the time of delivery was to he shown, not the condition in Which it might be, after remaining in the possession of the defendant, and travelling over the seas. But, it is evident, that such proof could not be received, or that, if received, it could not avail the defendant.

This leads us into an examination of the merits.

One only question here seems to be worth inquiring into. Was or was not the defendant induced by false representations from the plaintiff to buy his sugar, without looking at it? The evidence abundantly proves this not to be the fact. The defendant, through his agent, saw the sugar, agreed to give the price which the plaintiff asked for it, and actually received it, hogshead by hogshead, on board of his vessel. Whether it proved afterwards not to be as good as he thought, is pot a subject for judicial inquiry. The law gives no remedy against a want of discernment in judging the quality of things ; provided there has been no concealment, or deceit on the part of the seller, the contract cannot be attacked.

In a case which is so plain, and in which the defendant could expect so little from an appeal, we would have felt hound to give to the plaintiff the damages which the law grants in cases where the appeal is taken for the sake of delay, were it not that the parish judge has committed an error to the prejudice of the appellant, by allowing to the appellee interest on the amount found by the jury, and also by making that interest run from the date of the judicial demand, while, from the conditions of the purchase, the appellant was to give in payment of the sugar his notes, at two, three and four months, of which terms but a few days had elapsed when this suit was instituted.

It is, therefore, ordered, adjudged and decreed, that the judgment of the parish court be annulled, avoided and reversed ; and that judgment be entered For the plaintiff and appellee for eighteen thousand and seventy-two dollars, with legal interest thereon from the following dates, until payment-to wit: on one-third of that sum from the twentieth day of April, 1817; on one other third from the twentieth May following; and on the other third from the twentieth June following : and it is further ordered, that the costs in the parish court be paid by the appellant, and those in this court, by the appelle.  