The defendant collected the prize of oil for the plaintiff, but was told that it would first be necessary to measure the contents of the banks and to again examine the oil in conformity with the terms of the contract. The defendant then analyzed the samples and it was satisfactory. This resulted in giving to the defendant the check, equivalent to the full amount of the purchase prize. Later, the plaintiff sold the oil by contract in writing Portsmouth Cotton Oil Refining Co. yet the latter refused to accept such on the ground that it was contaminated by an admixture of kapok oil.
Whether or not the plaintiff has a cause of action against defendant based on an express warranty.
No. The contract of sale between the plaintiff and the defendant contains no express warranty against impurities. This is, therefore, not an action on an express warranty. In the absence of an examination of the oil by the plaintiff, the latter might have had a right of action on an implied warranty under article 336 of the Code of Commerce. As it appears that the plaintiff examined the oil to his satisfaction, it is evident that he cannot now rely on this article for his cause of action. The result will be the same if we regard impurity complained of as a latent defect which could not be discovered by an ordinary examination. The case would then come under article 342 of the Code of Commerce, but the right of action mentioned in that article was extinguished by the failure of the plaintiff to present his claim within thirty days from the delivery of the merchandise. There being no express warranty and the plaintiff having lost its right of action on the implied warranties as to the quality of the merchandise, it must now necessarily base its cause of action on fraud under article 344 of the Code.
Digest Credit: Lowell Vinluan