MORTON, Circuit Judge.
This is an appeal by the plaintiffs from a judgment of the Supreme Court of Puerto Rico dismissing their complaint. The facts are not now in dispute, the findings of the court of first instance, the District Court of San Juan, having been confirmed by the Supreme Court. The principal question is whether the plaintiffs’ suit is barred by the short statute of limitations applying to redhibitory actions.
The plaintiffs contracted to buy from the defendant a herd of 122 dairy cattle for $18,000; the cattle were delivered, and the full agreed consideration was paid for them in cash and property. Within a short time it developed that many of the cattle were infected with tuberculosis, a contagious disease. Seventy-two of them died or had to be killed for that reason. The exact number infected at the time of delivery is not stated. In the opinion of the Supreme Court it is said: “From the evidence, that court (the District Court) had the right to find that a great number of the cows sold were affected by tuberculosis at the time of the sale.” The plaintiffs tendered back the sound cattle and. demanded the return of the entire consideration which had been paid for the herd. The tender and the demand having been refused by the defendant, the present suit was instituted.
The District Judge held that there had been a failure of consideration on the part of the defendant; that the plaintiffs were entitled to recover back the entire consideration which had been paid by them; and that the defendant should take back the remaining cattle. On the defendant’s appeal this judgment was reversed by the Supreme Court of Puerto Rico, which held that the plaintiffs’ action did not rest on failure of consideration, but was redhibitory in character and was therefore subject to the forty-day statute of limitation above referred to. As the action had not been brought within this period, judgment was given for the defendant, from which the present appeal was taken.
The provision of the Puerto Rico Civil Code which in the opinion of the Supreme Court barred the plaintiffs’ action reads as follows:
“Sec. 1399. The redhibitory action, based on the vices or defects of animals, must be instituted within forty days, counted from their delivery to the vendee, unless, by reason of the customs in each locality, longer or shorter periods are established.
“This action in the sale of animals may only be enforced with regard to the vices and defects of the same, determined by law or by local customs.” Revised Statutes and Codes of Puerto Rico 1913, § 4505.
This section relates only to redhibitory actions, and the principal point of controversy is whether the plaintiffs’ action is of that character.
“Redhibitory actions,” as defined in the Supreme Court opinion, are those in which the vendee alleging a breach by the vendor of an express or implied warranty in a sale seeks to return the thing sold or part of the thing sold and to recover back all or a part of the price paid. See, too, Childs v. Wilson, 15 La.Ann. 512; Henderson v. Leona Rice Milling Co., 160 La. 597, 107 So. 459; and Enciclopedia Juridica Española, vol. 26, p. 884, referred to in the opinion of the Supreme Court. There appears to be no question but what a valid sale sufficient to support a warranty by the vendor is an essential foundation of an action of redhibition. In the present case the District Judge held that under section 1397 (Revised Statutes and Codes of Puerto Rico 1913, § 4503) tuberculous cattle could not be the subject of a contract of sale, that there had been no sale of the infected cattle, that as to them the plaintiffs’ action was not redhibitory, ’ and that the plaintiffs were not obliged to accept the sound cattle delivered with the diseased ones, but might reject the whole delivery and recover the entire consideration. For cases resting on failure of consideration a different and much longer statute of limitations applies. The Supreme Court held that there had been a valid sale of the diseased cattle which the plaintiffs were seeking to rescind and that the action was redhibitory.
The question depends on the true construction of section 1397, which reads as follows:
“Animals and cattle suffering from contagious diseases shall not be the object of a contract of sale. Any contract made with regard to the same shall be void.
“A contract of sale of cattle and animals shall also be void, when the use or service for which they are acquired being stated, they are found to be useless therefor.”
The Supreme Court, following the commentator Scaevola, held that this section did not make contracts for the sale of tuberculous cattle void, but only voidable, subject to rescission at the option of the vendee; that if the vendee elected to rescind he must return to the vendor the tuberculous cattle; that the action was accordingly redhibitory and was barred by section 1399, supra.
This construction does great violence to the language used. It completely ignores the first‘sentence of the section, viz., that “animals and cattle suffering from contagious diseases shall not be the object of a contract of sale,” and it reads “void” as “voidable.” Other sections of the Penal Code deal with the same subject-matter, i. e., cattle infected with contagious diseases, and must be considered in this connection.
“Sec. 351. Any person who shall knowingly sell, or offer for sale, or use, or expose, or who shall cause or procure to be sold or offered for sale, or used, or exposed any horse, mule, or other animal having the disease known as glanders, or any other contagious or infectious disease, shall be guilty of a misdemeanor.” Revised Statutes and Codes of Puerto Rico 1913, § 5803.
“Sec. 352. Every animal having glanders or any other contagious or infectious disease shall at once be deprived of life by the owner or person having charge thereof, upon discovery or knowledge of its condition; and any such owner or person omitting or refusing to comply with the provisions 'of this section shall be guilty of a misdemeanor.” Revised Statutes and Codes of Puerto Rico 1913, § 5804.
“Sec. 356. Every person who owns or has the custody of any cattle, horses, mules or asses infected with a contagious disease, and fails to immediately report the same to the insular health authorities, or conceals the existence of such disease, or attempts so to do, or wilfully obstructs or resists the said health authorities in the discharge of his (their) duty as provided by law, or sells, gives away or uses the meat or milk, or removes the skin or any part of such animal, is punishable by fine not exceeding three hundred dollars or imprisonment in jail not exceeding one year, or both, in the discretion of the court.” Revised Statutes and Codes of Puerto Rico 1913, § 5808.
“[Law of March 14, 1907.] Every person who knowingly sells or disposes of to another person any animal infected with or laboring under any infectious or contagious disease, or the meat, skin, hide, horns, hoofs, or any other part of an animal infected with or laboring under any infectious or contagious disease at the time of its death, shall be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be subject to a fine of not less than one hundred dollars and not more than one thousand dollars or imprisonment in jail for not less than one month, nor more than one year, or to both such fine and imprisonment.” Revised Statutes and Codes of Puerto Rico 1913, § 118.
These sections, in connection with others which it is unnecessary to quote, taken together, form a plan for dealing with the menace to public health occasioned by diseased animals. Section 1397 is obviously an integral part of this plan and should be so considered. The Supreme Court of Puerto Rico does not seem to have had this aspect of the matter in mind. It is not referred to in the opinion, nor are the sections just quoted referred to. It is said by the court that the purchaser of a cow upon discovering that she has incipient tuberculosis has an election whether to keep her or to return her to. the vendor. “To recover the price, he must return the animal. It is entirely at his election to retain the cow.” These views cannot be reconciled with the provisions of the sections above quoted which make criminal the sale or use of infected cattle knowing them to be so, and require the custodian of cattle found to be infected to kill them at once. It is contended by the appellants that the great weight of opinion by the commentators on the Spanish and other codes which contain sections substantially like 1397 is adverse to Scaevola’s view on this point, and to the view taken by the Supreme Court of Puerto Rico. We do not think it necessary to consider this aspect of the matter; nor indeed upon such a question should we set our judgment against that of the Supreme Court of Puerto Rico. We recognize that the question before us is one on which the opinion of that court carries great weight and ought not to be set aside unless demonstrably erroneous; and we bear in mind the caution which must be exercised in dealing with such matters. B. Fernandez & Bros. v. Ayllon y Ojeda, 266 U.S. 144, 146, 45 S.Ct. 52, 69 L.Ed. 209. But we see no escape from the conclusion that the Supreme Court of Puerto Rico overlooked important provisions of law and erred in disregarding the plain language of section 1397. There is no suggestion that the language of the section is ambiguous, but only that it is ill-advised and mistaken. In Helvering v. City Bank Farmers Trust Co., 56 S.Ct. 70, 72, 80 L.Ed. —, United States Supreme Court, November 11, 1935, it was said: “We are not at liberty to construe language so plain as to need no construction.” We do not understand that the Supreme Court of Puerto Rico has greater powers. See, too, Thompson v. United States, 246 U.S. 547, 551, 38 S.Ct. 349, 62 L.Ed. 876.
We think it clear that cattle having contagious diseases are, in Puerto Rico, out of the commerce of man and cannot be made the object of a contract of sale. In attempted sales of such cattle no contract arises because there is no “definite object which may be the subject of the contract” as required by section 1228 (Revised Statutes and Codes of Puerto Rico 1913, § 4334). There being no contract, there is nothing to rescind and, no property being in the vendee’s possession that can lawfully be returned, there is nothing to return. There being no contract of sale on which a warranty, express or statutory, could rest, an action to recover back the price would not be redhibitory, and -the prescription period of forty days or of six months (sections 1393, 1399 [Revised Statutes and Codes of Puerto Rico 1913, §§ 4499, 4505]) would not apply. Furthermore, under the law of Puerto Rico when a contract lacks any one of the essentials prescribed in section 1228, no contract exists; and no declaration of nullity is necessary before an action may be brought to recover the price. See Valiente & Co. v. Succession of Abdon Fuentes Marrero, 76 F.(2d) 78 (C.C.A.l). The deliveries of tuberculous cattle by the defendant to the plaintiffs amounted to nothing at all; and the payments made for them by the vendee in money and property were entirely without consideration. The action to recover such payments is not a redhibitory action and is not limited by the forty day provision of section 1399 or by the six months provision of section 1393.
If the herd of cattle which were sold be regarded as a unit and as the thing which was sold, a different result would be reached because about fifty of the cattle were sound and were legitimate objects of sale. The thing sold was not therefore completely unlawful as an object of commerce; the good portion of it would pass to the vendee and would have to be returned by him if he elected to rescind; the action would be redhibitory in character and would be limited by the provisions of section 1399. The Supreme Court of Puerto Rico did not, however, so regard the transaction. It said: “We have the idea that when cattle are sold, even for a dairy, the animals are sold individually. It is a distributive sale. It makes no difference that the sale was for a lump sum. With the exceptions noted in the chapter, only the cattle affected with a redhibitory vice” (the Supreme Court regarded tuberculosis as being of that character), “under all the codes and the commentators that we have seen, may be returned. * * * The defendant had a clear right to insist that the contract was good for the cattle that were sound. * * * Before concluding this opinion we desire to say, and this appears possibly from our general considerations, that the plaintiffs never had the right to the cancellation of the whole contract, but only to bring a redhibitory action for the animals that were suffering from or died of a contagious disease.” (Italics supplied.)
There are great difficulties in dealing with the sale of a herd of cattle for dairy purposes as a unitary thing on questions of this character. The views of the Supreme Court of Puerto Rico on this point certainly cannot be said to be clearly wrong.
To summarize: In the trial court the plaintiffs put their claim on the herd basis ; they endeavored to rescind the entire transaction and get back- the full consideration which had been paid; and they were held entitled to do so. On appeal the Supreme Court held that the sale could not be given this unitary character, but must be considered with respect to the individual animals; and that view stands. In its decisión that, as to the tuberculous cattle, a'fcontract was entered into and the plaintiffs’ rights were of redhibitory character ánd subject to the limitation of section 1399, the Supreme Court fell into error.
It follows that the judgment appealed from must be reversed, and.the cause remanded to the District Court of San Juan, with instructions to permit the' plaintiffs to amend if they are so advised. As we understand the opinion .of the Supreme Court, this is the result which would have been reached in that court if section 1397 had been given what we hold to be the necessary construction of it. At any rate, it is the just result.
The judgment of the Supreme Court of Puerto Rico is reversed, and the case is remanded to that court 'for further proceedings not inconsistent with this, opinion; the appellants recover costs of appeal.