107 So. 299 | La. | 1926
On July 15, 1920, defendant sold plaintiff "170 barrels (not more) St. Delphine second sugars." On July 21st defendant shipped 159 barrels of St. Delphine *445 second sugars, which were duly received and paid for by plaintiff on July 27th.
On receipt of the sugar, plaintiff made only a "casual" inspection thereof, and placed same in its warehouse; the reason why only a casual, and not a thorough, inspection thereof was made, being that plaintiff's "regular" sugar buyer was then taking his summer vacation, who remained away for the whole of the month of August, and discontinued altogether his connection with plaintiff on September 1st.
No thorough inspection of the sugar was ever made thereafter, until October 26th; the occasion for such inspection at that time being, that, "about the middle of October," plaintiff sold and shipped part of said sugar to some of its customers, who rejected and returned it as being then "unfit for use."
Whereupon plaintiff, claiming that said sugar "contained black specks, sticks, and lumpy matter, and was neither merchantable nor fit for human consumption," brings this suit to recover from defendant the difference between the cost of said sugar (including freight, storage, labor, insurance, and interest), and the price for which it was obliged to sell it.
But we do not think that in this case plaintiff is entitled to recover anything from defendant.
The saccharine matter in the juice of the sugar cane will notall 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 the first 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 expel the molasses from these second sugars than from the first, and still more so as to third sugars, in consequence of whichsecond 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 *447 true to samples taken at the time the sugar was put into the barrels. And the main complaint of plaintiff is that the sugar, when examined at the end of October, after having been shipped in July, and stored in barrels during August, September, and October, was full of some "dark sticky substance," and that it "would not go through the holes in the sieve (through which an effort was made to sift it), but would roll up in large balls, and * * * was soft and wet." And manifestly, in that condition, it was not "fit for use" as sugar — all of which was to be expected under the circumstances, and is readily understood from what we have said above.
But the testimony of the owners of the St. Delphine plantation, on which the sugar was made and from whom it was bought by defendant, establishes that, at the time it was shipped, it was merchantable, wholesome, good second sugar, and fully up to the samples furnished plaintiff at the time the sugar was sold, and hard black lumps and "black specks that looked like pieces of rusted iron, which would crumble in your fingers like iron rust," are no more than should be expected in sugar that has "caked" because of the molasses in it. For the rest, wood splinters and chips will occasionally get into barrels of sugar (or of anything else) whilst the coopers are heading them up; but the trial judge did not believe, nor do we, that the sugar was full of "sticks."
"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 a reasonable time, and the buyer is guilty of laches precluding rescission [ordamages, 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 claimingdamages], 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. And here it is not pretended that there was any representation other than that the sugar was "St. Delphine second sugar," and also that "the goods will conform to the Food and Drug Act of Congress of June 30, 1906, and all amendments thereto."