Blanchard, J.
Plaintiff is an orange merchant of New Orleans, in the habit of purchasing the produce of orange orchards in Louisiana in advance of the growth and maturity of the crops.
Défendant was the owner of an orange orchard, and in November,. 1898, he agreed to sell to plaintiff, and the latter to buy, the oranges which his orchard would produce in the years 1899 and 1900.
The agreement was reduced to writing and is as follows:—
“ I have this day, in consideration of the terms hereinafter named, sold unto Vincent Losecco of the City of New Orleans, two crops of ■oranges on my place as follows, i. e.:
“ 1st. All oranges that my trees may produce in 'the year eighteen hundred and ninety-nine (1899).
“ 2nd. All oranges that my trees may produce in the year nineteen hundred (1900).
“Eor the sum of eight thousand dolíais ($8000).
“ Four thousand dollars paid cash down and the balance four thousand dollars to be paid on the 1st day of December, 1900. Purchaser assumes all risks. Vendor to furnish teams and carts and drivers to-move the two (2) crops.”
This was signed by both parties.
The plaintiff (Losecco) paid the four thousand dollars stipulated' for.
In February, 1899 — on the 12th, 13th and 14th days thereof — les3than three months from the execution of the contract aforesaid, there occurred an unprecedented freeze, the thermometer going down to-seven degrees above zero in the City of New Orleans and eight degrees above in the Parish of Plaquemines, below the city, where defendant’s orange orchard' was situated.
This freeze, plaintiff alleges, killed and utterly destroyed the orange [651]*651trees of defendant. The latter admits this in his answer, and the proof establishes it.
Because of the utter destruction of the orchard and no possibility of the production of any crop thereon in the contract years, plaintiff demanded the return of the $4000 he had paid'.
This was refused and the present suit followed.
The allegation is made that a freeze such as that which destroyed the orchard was never considered nor contemplated by the parties in making the contract, since no orange groves in the section of country where the one in question was located had ever .before been destroyed by cold.
The destruction of defendant’s .grove is ascribed to a fortuitous event, an act of God, and by reason thereof the cause or consideration of the contract is .averred to have wholly failed, entitling plaintiff to the relief sought.
Eesistance is made on the ground that the agreement between the parties evidences an aleatory contract.
The contention is that Losecco purchased an uncertain hope, an expectancy, a chance — classifying ungrown crops as such — and must take the consequences of his bargain. It is claimed that all risks are included by the nature of an aleatory contract, and, besides, that Losecco expressly assumed all risks.
Judgment below was in favor of plaintiff and defendant appeals.
Is this an aleatory contract ?
If it be, the defense is good against plaintiff’s alleged right of recovery.
“A contract,” says O. C. 1776, “is aleatory or hazardous when the performance of that which is one of its objects depends on an uncertain event. It is certain when the thing to be done is supposed to depend on the will of the party, or when in the usual course of events it must happen in the manner stipulated'.”
Judged by this definition of the law, the contract under consideration is not an aleatory one, because the performance of that'which was one of its objects — the growing of oranges — did not “ depend on an uncertain event,” within the meaning of the Article of the Code.
It is a “ certain ” contract, in the sense of the Article, because “ in the usual course of events it must happen.”
The cold of February, 1899, which killed all the trees of the grove [652]*652and prevented the happening of the event — the growing of the crops of oranges in 1899 and 1900 — was unusual in the course of events, wias phenomenal and extraordinary. The evidence establishes this.
There had been cold weather — very cold weather for an orange growing country — in certain years, attended with destruction of the orange crop of the years when occurring, and sometimes with partial destruction of the orange trees — the killing of the upper and outstanding twigs and branches, requiring trimming and pruning. There, too, was one year, 1895, when it is said by one witness that about half of the orange trees were destroyed.
But the total destruction of entire groves of orange trees had not been known since, certainly, the year 1830, when, as we are vaguely informed by Martin’s History of Louisiana (new edition, continuation by Condon), “the severity of the winter * * * destroyed the orange trees.”
The evidence discloses that for days following the great freeze of Eebruary, 1899, the remarkable spectacle was presented of ice floes in the Mississippi river passing the City of New Orleans, borne by the river’s current to the Gulf of Mexico, and that some of the blocks of ice were from twenty to thirty feet in length by from ten to fifteen feet thick.
It does not appear that the like was ever known before on .the lower stretch of the river.
It is shown that the temperature at the time of the freeze of 1899 was from six to seven degrees lower than ever before — the lowest point reached prior to that time, of which any information is given, having been in 1895 when the thermometer registered! fourteen degrees above zero.
The principal witness for the defense, who has lived in the Parish of Plaquemines for twenty-five years, and who seems to have kept a record of the cold of the winters, admits that he had never known of a freeze in the parish which approached that of Eebruary either in intensity or duration.
We are justified, then, in holding that the contract between these parties litigant was “certain,” as contradistinguished from “aleatory,” ■in the meaning of the law, since in the usual course of events it must happen that the trees composing defendant’s orange grove, or at least .some of them, wbuld have continued to exist during the contract [653]*653years, and that their total destruction by the freeze in question must be considered as unusual in the course of events.
Defendant sold by the contract “two crops■ of oranges.” He did not sell the hope, or the chance of two crops.
What he sold was oranges, and whiat he must be understood ¡as ¡warranting was that his trees ¡would be there to do their part .towards growing oranges. Lanata vs. O’Brien, 13 La. Ann. 229. The contract certainly contemplated the continued existence of the trees, for the language is “all .oranges my trees may produce in the year 1899; all oranges my trees may produce in the year 1900.”
The trees, however, disappeared, ceased to exist, were not there to produce oranges, or to make the effort of nature to produce oranges.
But it is said “the purchaser assumed all risks.” True, those words are in the contract, and are not to be read out of it.
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Blanchard, J.
Plaintiff is an orange merchant of New Orleans, in the habit of purchasing the produce of orange orchards in Louisiana in advance of the growth and maturity of the crops.
Défendant was the owner of an orange orchard, and in November,. 1898, he agreed to sell to plaintiff, and the latter to buy, the oranges which his orchard would produce in the years 1899 and 1900.
The agreement was reduced to writing and is as follows:—
“ I have this day, in consideration of the terms hereinafter named, sold unto Vincent Losecco of the City of New Orleans, two crops of ■oranges on my place as follows, i. e.:
“ 1st. All oranges that my trees may produce in 'the year eighteen hundred and ninety-nine (1899).
“ 2nd. All oranges that my trees may produce in the year nineteen hundred (1900).
“Eor the sum of eight thousand dolíais ($8000).
“ Four thousand dollars paid cash down and the balance four thousand dollars to be paid on the 1st day of December, 1900. Purchaser assumes all risks. Vendor to furnish teams and carts and drivers to-move the two (2) crops.”
This was signed by both parties.
The plaintiff (Losecco) paid the four thousand dollars stipulated' for.
In February, 1899 — on the 12th, 13th and 14th days thereof — les3than three months from the execution of the contract aforesaid, there occurred an unprecedented freeze, the thermometer going down to-seven degrees above zero in the City of New Orleans and eight degrees above in the Parish of Plaquemines, below the city, where defendant’s orange orchard' was situated.
This freeze, plaintiff alleges, killed and utterly destroyed the orange [651]*651trees of defendant. The latter admits this in his answer, and the proof establishes it.
Because of the utter destruction of the orchard and no possibility of the production of any crop thereon in the contract years, plaintiff demanded the return of the $4000 he had paid'.
This was refused and the present suit followed.
The allegation is made that a freeze such as that which destroyed the orchard was never considered nor contemplated by the parties in making the contract, since no orange groves in the section of country where the one in question was located had ever .before been destroyed by cold.
The destruction of defendant’s .grove is ascribed to a fortuitous event, an act of God, and by reason thereof the cause or consideration of the contract is .averred to have wholly failed, entitling plaintiff to the relief sought.
Eesistance is made on the ground that the agreement between the parties evidences an aleatory contract.
The contention is that Losecco purchased an uncertain hope, an expectancy, a chance — classifying ungrown crops as such — and must take the consequences of his bargain. It is claimed that all risks are included by the nature of an aleatory contract, and, besides, that Losecco expressly assumed all risks.
Judgment below was in favor of plaintiff and defendant appeals.
Is this an aleatory contract ?
If it be, the defense is good against plaintiff’s alleged right of recovery.
“A contract,” says O. C. 1776, “is aleatory or hazardous when the performance of that which is one of its objects depends on an uncertain event. It is certain when the thing to be done is supposed to depend on the will of the party, or when in the usual course of events it must happen in the manner stipulated'.”
Judged by this definition of the law, the contract under consideration is not an aleatory one, because the performance of that'which was one of its objects — the growing of oranges — did not “ depend on an uncertain event,” within the meaning of the Article of the Code.
It is a “ certain ” contract, in the sense of the Article, because “ in the usual course of events it must happen.”
The cold of February, 1899, which killed all the trees of the grove [652]*652and prevented the happening of the event — the growing of the crops of oranges in 1899 and 1900 — was unusual in the course of events, wias phenomenal and extraordinary. The evidence establishes this.
There had been cold weather — very cold weather for an orange growing country — in certain years, attended with destruction of the orange crop of the years when occurring, and sometimes with partial destruction of the orange trees — the killing of the upper and outstanding twigs and branches, requiring trimming and pruning. There, too, was one year, 1895, when it is said by one witness that about half of the orange trees were destroyed.
But the total destruction of entire groves of orange trees had not been known since, certainly, the year 1830, when, as we are vaguely informed by Martin’s History of Louisiana (new edition, continuation by Condon), “the severity of the winter * * * destroyed the orange trees.”
The evidence discloses that for days following the great freeze of Eebruary, 1899, the remarkable spectacle was presented of ice floes in the Mississippi river passing the City of New Orleans, borne by the river’s current to the Gulf of Mexico, and that some of the blocks of ice were from twenty to thirty feet in length by from ten to fifteen feet thick.
It does not appear that the like was ever known before on .the lower stretch of the river.
It is shown that the temperature at the time of the freeze of 1899 was from six to seven degrees lower than ever before — the lowest point reached prior to that time, of which any information is given, having been in 1895 when the thermometer registered! fourteen degrees above zero.
The principal witness for the defense, who has lived in the Parish of Plaquemines for twenty-five years, and who seems to have kept a record of the cold of the winters, admits that he had never known of a freeze in the parish which approached that of Eebruary either in intensity or duration.
We are justified, then, in holding that the contract between these parties litigant was “certain,” as contradistinguished from “aleatory,” ■in the meaning of the law, since in the usual course of events it must happen that the trees composing defendant’s orange grove, or at least .some of them, wbuld have continued to exist during the contract [653]*653years, and that their total destruction by the freeze in question must be considered as unusual in the course of events.
Defendant sold by the contract “two crops■ of oranges.” He did not sell the hope, or the chance of two crops.
What he sold was oranges, and whiat he must be understood ¡as ¡warranting was that his trees ¡would be there to do their part .towards growing oranges. Lanata vs. O’Brien, 13 La. Ann. 229. The contract certainly contemplated the continued existence of the trees, for the language is “all .oranges my trees may produce in the year 1899; all oranges my trees may produce in the year 1900.”
The trees, however, disappeared, ceased to exist, were not there to produce oranges, or to make the effort of nature to produce oranges.
But it is said “the purchaser assumed all risks.” True, those words are in the contract, and are not to be read out of it. On the contrary? they meant something and effect must be given to them.
We differ from defendant’s counsel only in the scope of their meaning.
They axe to be considered ¡as meaning all usual, known, or foreseen risks that may attend the inception, growth, development and maturity of the orange crop.
This assumption of xisk is held to apply to the thing sold, viz: — the ¡orange crop of each year; not that which was to produce the crops— the trees themselves.
Plaintiff took his chances on the crops, whether bountiful, or meagre; whether of good quality, or bad.
His risk may have included all the vicissitudes of the season as to the effect of same on the orange crop proper. If the season were such that only ¡an orange or two were produced in the grove, the same would have been “the crop” of the year and that was what he bought and 'he would have no cause to complain. It may be that he took his chances as to whether there would be ¡any oranges grown at all, the trees remaining.
But his xisk can not be extended to an inclusion of the life of the trees themselves.
The contract meant they were to remain in esse, to ¡afford the orange crops which plaintiff purchased an opportunity to grow.
Plaintiff did not purchase the trees; he purchased only what the trees were to produce.
[654]*654If the trees had remained and afforded the oranges nature’s chance to grow, the fact that they were unable to grow because of unpropitious seasons would not have availed plaintiff and he must abide his contract.
But where the trees did not remain, were all destroyed and nothing was left to afford an orange a chance to grow, the case is different.
Plaintiff took the risk only of the appearance on the trees, the growth, development and maturity of the oranges — not the risk that the orchard itself would continue to exist. See Walker vs. Tucker, 70 Ill. 527.
The contract may be likened unto a lease of the trees to gather the fruit they may produce in the years named.
“If,” says the law (C. O. 2697), “during the lease, the thing be totally destroyed by an unforseen event * * * the lease is at an end.”
If, then, the trees .of defendant were destroyed by an uncontrollable event, par cas fortuity or force majeure, it is a lobs which must be held to fall on him.
It would come under the head of an unforeseen accident.
Plaintiff did not stipulate in the contract to run all chances of all foreseen and unforeseen accidents. C. C. 2743.
He stood to take, all chances of foreseen accidents only.
If, following the execution of the contract, war had been declared and an invading lairmy had occupied the country, cutting down all the trees of this orange grove, would this be considered a risk which plaintiff assumed by the words: — “the purchaser assumes all risks”? We think not.
If the great river which washed the front side of this orange grove had exerted its mighty force and engulfed the whole tract of land— not merely overflowing it, but appropriating it for its -bed, causing the whole of it “to cave into the river,” as the vernacular phrase is — ■ would this come within the scope of the risks assumed by the purchaser? We can not hold so.
Yet these catastrophes would not have been more utterly destructive of the tree life of this orange orchard than was the freeze of February, 1899.
The destruction of the orange trees was the destruction of the subject matter on which the contract was to operate.
[655]*655The term vis major (superior force) is used in the civil law the same way that the words “Act of God” are used in the common law.
These are not considered included in the assumption of risks such as that here disclosed. To be held so included it must clearly appear that such was the intention of the parties. C. C. 1933, 2743, 2219, 2120, 2697, 2754, 2939, 2970; 120 U. S. 731.
When the orange gr-ove of defendant ceased to exist, the contract between him and the plaintiff became a contract “without cause” in the meaning of C. C. 1897 which- says: — “The contract is also considered -as being without cause when the consideration for making it was something which, in the contemplation -of the parties, was thereafter expected to exist or take place, iand which did not take place or exist.”
Here the consideration for making the contract, on part of the plaintiff, was the orange grove from which he expected to derive a crop of oranges in each of the contract years. He land defendant certainly expected the grove “thereafter to exist” — to continue to exist following the execution of the contract and for the two years of the life of the contract. But the grove -did not continue to exist, and, ¡thus, the consideration -or cause of the contract failed. See C. C. 1899; Mayor vs. Caldwell, 14 L. 501; Hall vs. School District, 24 Mo. App. 213.
“Where the consideration or cause of -the contract,” says O. C. 1898, “really exists at the time of' making it, but afterwards fails, it will not affect the contract if all -that was intended by -the parties be carried into effect at the time.” It surely cannot be claimed that all that was intended by the parties to this contract at the time iof its execution has been carried into effect, nor that all that was intended was carried into effect at the time.
“When the certain and determinate substance,” says C. C. 2219, “which was the object o-f the obligation, is destroyed * * * so that it is .absolutely not known to exist, the obligation is extinguished * * *.”
Here, the “certain and determinate substance” constituting the object of the contract was. a grove of orange trees. ' Its -destruction carried with it the destruction of the obligations growing out of the contract.
Thus, if plaintiff were to sue defendant for the crop of oranges in [656]*656the year 1899, had in contemplation in this contract, or were to sue him for damages because no crop of oranges was delivered that year, he could not, under the terms of this law, recover. See also- C. C. 1933, clause 2.
So, too, if Losecco had not paid in advance part of the purchase price .and were, at the end of the contract period, sued for the whole of the $8000 he stipulated to give for the two crops of oranges, no recovery .against him could be had.
The orange grove having been destroyed by a fortuitous event, a vis major, the purchaser of the crop of oranges which the grove was expected to grow in the contract years had the right to recede from the contract. This being so> the seller is bound to make him restitution of that portion of the price received. C. C. 2497, 2301, 2302, 2304.
The judgment appealed from is found to be correct and is affirmed.
The Chief Justice and Mr. Justice Monroe, dissent