WILLIAMS vs. MILLER ET AL., 9 La. 129

Mathews, J., delivered the opinion of the court. This suit is brought to recover the value of a certain number of logs sold by the plaintiff to the defendants, for the purpose of being sawed into planks and scantling. Judgment was rendered in the court below for the former, from which the latter appealed. The contract is clearly established by the evidence of the case, and the defence turns altogether on the warranty'by the seller, of the soundness of the timber by him sold. It appears that the contract was made for the defendants' by their agent, who was introduced on their part as a witness in the cause.

He and the witnesses for the plaintiff, do not disagree as to the conditions of the contract, so far as they are proved by all. But the agent of the defendants who actually made the agreement, testifies to facts more than those established by the witnesses of the plaintiff. He says that he was unable to examine the logs at the time of purchase, in consequence of the soreness of one of his arms, and that he made the bargain on the guaranty of the seller, that they should equal in soundness that which was stipulated in the contract; in other words, that they should answer the purposes for which they were bought.

The testimony, however, shows, that when tried at the saw-mill they proved to be defective in a much, greater degree than was contemplated by the purchasers, and were wholly unfit for the uses intended, being entirely rotten. We see no reason to discredit the testimony of the witness of the defendants, and if he be believed, it is evident that the timber was taken on the warranty of soundness, either express or implied, to which the seller was bound. To discover the defects, a peculiar kind of examination was necessary, and the agent was unable to make it.

The , ° . . , .. , present does not, therefore, come within the cases provided , for by. law, where defects in articles of commerce are discoverable by simple inspection. See Louisiana Code, art. 1841 and 2497.

The buyers in the present, instance, were deceived by the representations of the quality of the articles solcl by the vendor, and whether they were thus deceived by 4 ( ,, ¶ eiTor or design on his part, cannot vary the rights of the parties in foro leges, because the defects were not discoverable immediately on inspection, and they were such, that it must, be supposed that the buyers would not have purchased, had they known of them. See Louisiana Code, art. 2496.

The ^®gal and moral principles assumed by the judge a quo, in relation to contracts of sale, are probably all sound and - i t r. #. t r i correct; but according to our belief of the facts of the present casei we are of opinion that they are not applicable to it.

Where the cerredbythere-presentations of ttic seller^ in tne quality of the theCdefe°ots’ are not such as might simple inspee-known, itU must buyerwouid not have purchased, it is sufficient cause to rescind cover'back'1 the price.' It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be reversed and annulled; and it is further ordered, adjudged and decreed, that the contract between the parties be cancelled and set aside, and that the defendants do recover from the plaintiff one hundred dollars, a part of the price which was paid by them to him, (before the defects and total uselessness of the timber was discovered,) with costs in both courts.