On October 25, 1922, the plaintiff and the defendant entered into the following contract (Exhibit A):

"CONTRACT

"MANILA, October 25, 1922

"Messrs. Go Jocco
                         "Manila, P. I.

"As brokers duly authorized, we have on this date  sold by  order and for the  accounts  of yourselves to Messrs. Philippine Manufacturing  Co., Inc., Manila, P. I., 500  tons of coconut oil for the price of twenty-seven and a half centavos per kilo ex tanque.

"The delivery shall be made within 35 days, that is, between November 1st and December 5, 1922, inclusive.

"The purchaser shall pay the vendor the  total amount of this  contract  on  the 15th of  November, 1922.

"Should the purchaser take the  oil a few days  before November 15, 1922, the purchaser shall pay to the vendor all  the  amount of the aforesaid  contract two days  before delivery.

"Should the purchaser fail to take the oil until the 5th day of December, 1922, said purchaser shall pay the vendor as storage the sum of P50 for each successive day.

"The state or class of the oil:  Not more than 6% F. F. A.

"Conformes:

	"PHIL. MF'G . CO.		(Sgd.) "GO JOCO
(Sgd.)	"S.W. MASON		"Vendor
	Vendee
			"BERMUDEZ & BAUTISTA
		"By (Sgd.)	BERMUDEZ
			"Brokers"

The oil purchased was stored in the defendant's  tanks Nos. 6 and 7 and, previously to the closing of the contract, the plaintiff's secretary and chemist, Mr. S. W. Mason, took samples of the oil from said  tanks for analysis.  The testimony is uncontradicted that on November 15, 1922, the defendant, in conformity with the terms of the contract Exhibit A, endeavored to collect the price of the oil from the plaintiff, but was told by  Mr. Mason that it would first be necessary to measure the contents of the tanks and to again examine the oil.  On the same day, Mason went to the defendant's establishment and took new samples of the oil from the  tanks  for  chemical analysis.  He thereupon ordered his men to close the tanks by placing padlocks on the valves, he retaining the keys.   After having done so, he advised the defendant that he  would analyze the samples and that if the result was satisfactory, payment would be made at once, and later in the day the plaintiff gave the defendant its check for P137,500, the full amount of the contract purchase price.

On November 17,  1922, the plaintiff sold the oil by contract in writing to the Portsmouth Cotton Oil Refining Corporation at the price of P7.50, United States currency, per 100 pounds, C. I. F., Norfolk,  Virginia, the contract containing the  following provision as to the quality of the oil:

"Coconut Oil bases 5 per cent free fatty acid, Maximum 7 per cent free fatty acid shall be fair average of the season of the country in which it is pressed, and shall be sold on basis 5 per cent free fatty acid, one per cent moisture and impurities; provided, however, that any oil which exceeds 5 per cent free fatty acid but does not exceed 7 per cent free fatty acid, shall not be rejected but shall be reduced in price one half of one per cent for each one per cent excess acidity over 5 per cent, fractions in proportion."

In the morning of November  27, 1922, the oil was drawn from the  tanks by the plaintiff  and brought  aboard the tank steamer Acme for shipment to the Portsmouth Cotton Oil Refining Corporation  at Norfolk, Virginia,  together with other  oil manufactured by  the  plaintiff and  by the Philippine Vegetable  Oil Company, the whole shipment amounting to approximately 901  long .tons.  Mr.  Mason was present when the oil was  removed  from the defendant's tanks.

Mr. Ericksen of the firm of Morton &  Ericksen, marine and  cargo surveyors, surveyed the ship's  tank No.  2 in which the shipment in question was carried.   In  his certificate of survey, Exhibit B, he states among other things:

"Temperatures were taken  and  samples drawn of oil loaded into No. 2 tank, port and starboard sections Steamship Acme  from Philippine Manufacturing Co.'s  storage tank A, Philippine National Oil  Co.'s Storage Tanks Nos. 5 and 7, and from tank lighters  Quinan which were loaded from P. V. 0. Storage Tank No. 21.  All these samples were submitted to Bureau of Science, Manila, for determination of specific gravity and weight per cu. ft.

"Samples of oil were also drawn from vessel's tank, both sections, after all oil was loaded  on board and submitted to Bureau of Science for  analysis.  Samples of  this oil drawn from vessel's tanks will  be forwarded  to Fireman's Fund Insurance Co., San Francisco."

On the arrival of the Acme at  Norfolk, the Portsmouth Cotton Oil Refining Corporation refused  to accept the oil on the ground that it was contaminated with cottonseed oil and, in  accordance with the contract between the  parties, the matter was submitted to the New York Produce Exchange Arbitration  Committee for arbitration.  Samples alleged to have been taken from the shipment were tested by the Bureau of Chemistry of the New York Produce Exchange through the so-called  Halphen test, and were found to be contaminated with cottonseed oil.  As to the proceedings before the  Arbitration  Committee,  Mr. Berry, the plaintiff's vice-president and  treasurer, who at that time was in New York, makes the following statement in a letter to the defendant dated July 6, 1923:

"The matter was  discussed, each side  given an opportunity  to present its arguments and examine the other's witnesses and  statements.  However,  the purchaser produced  a certificate of the Bureau  of  Science  of Manila showing that an  examination made of  the oil  taken from your tanks showed the presence of Kapok Seed Oil.  This certificate, showing the condition of the oil before it was loaded  into the deep tanks of the vessel, appeared to convince the committee that the purchaser's claim was justified. The committee called us back again the next day and asked whether we would be willing to agree with the purchaser to receive the rejection of the oil and replace it with oil of good tender or what objections we  could possibly have to granting the allowance asked  for.  There was every indication shown by the committee that  its  decision would decidedly be in favor of the purchaser.  The  writer had been in close touch with the market and knew  just what could be done with the oil if the decision was against us.  Realizing that  the committee  would not render a  decision in our  favor, the  writer  made  a proposition to  the purchaser  in the presence of the arbitration committee to buy back the oil from him on the basis of 8 7/8 ¢ per pound c. i. f. The purchaser was not enthusiastic  about releasing the oil at this price as he figured he was practically certain of a decision  of the committee which would grant him an allowance of 1 cent gold per pound,  but the committee insisted that he accept the proposition advanced, which was considered fair.  However, the committee decided that in addition to the purchase price of the oil the purchaser was entitled to all  of the expenses incurred up to that time. As soon as the matter was closed the oil was placed in the hands of Zimmermann Alderson Carr Company for sale and sale was  effected two days  later to Messrs. Proctor & Gamble Company on the basis of 9 ¼ ¢ tank cars Cincinnati, which was approximately the equivalent of $.0894 Norfolk. The sale was closed and the oil disposed of in this  manner."

The contract of sale to  Proctor &  Gamble Co. reads as follows:

"NEW York, March 19, 1923.

"PHILIPPINE MANUFACTURING COMPANY
"Manila, P. I.Sellers

"THE PROCTOR & GAMBLE COMPANY
"Cincinnati, Ohio Buyers

"GENTLEMEN: Confirming  telephone   conversation,  we confirm having sold to-day to:

"Purchaser: The Proctor & Gamble Company.

"For  account of: Philippine  Manufacturing Company.

"Article:  Two  million twenty-nine thousand four hundred  (2,029,400)  lbs. Manila Cocoanut  Oil, as  per sample submitted and  approximately equal to Still well & Glading's analysis of February 3d, 1923.

"Price:  All at a price of  nine and one-quarter (9£)  cents per lb., cost and freight Cincinnati, Ohio.

"Shipment:  Immediate from Norfolk, Va. "Weights: Actual weight of oil in tank cars as shown by Public Weighmaster's certificates.

"Terms and  conditions:  Net cash in  exchange for bills of lading, payable in New  York City funds, in United States Gold, or its equivalent in currency.   Sellers not responsible for contingencies  beyond their control.

"Brokerage:  To be paid by sellers;

"ZIMMERMANN ALDERSON CARR CO.
(Sgd.)   "R. N. Ball

'This confirmation is made in triplicate, one copy being sent to the sellers, one to the buyers, and one retained on file in this office.  Kindly sign one copy of this confirmation and return to us for exchange with" other party to the trade for completion of their files.

"Accepted: PHILIPPINE MFG. COMPANY

                                                                         (Sgd.)   "BRYCE LE JENNE

"Sellers Agt.

"Accepted:  THE PROCTOR & GAMBLE CO.
(Sgd.)  "F.  M.  BARNEY
            "Buyers"

Though  the price at which the oil was sold to  Proctor & Gamble Co. was considerably higher than the price agreed upon  with the Portsmouth Cotton Oil  Refining Corporation,  the expenses for rent of cars,  transportation,  brokerage, etc., greatly exceeded the difference and the plaintiff maintains that it suffered a loss of P21,263.04. The first intimation given the defendant of dissatisfaction with the quality of the oil purchased from him was the following letter from the plaintiff:

"February  8, 1923.

"Mr. GO JOCCO
     "212-214 Rosario
           "Manila,  P. I.

"Dear Sir:  We have received a cable from the United States stating  that the oil delivered to us by you  contained kapok or cottonseed oil.  The buyers in the United States are claiming damages.  We will call upon you to  stand any loss or damage due to this cause.  Official samples taken from tanks at your plant show the presence of kapok  or cottonseed oil as analyzed by the Bureau of Science.

"Very truly  yours,

"PHILIPPINE MANUFACTURING COMPANY

"By (Sgd.)  S. W. MASON
"Secretary"

After some more fruitless correspondence, the present action was brought on December 27, 1923, the  plaintiff alleging the principal facts herein-before set forth and asking damages in the sum of P21,263.04, Philippine currency. The defendant answered with a general denial and set up as special defenses that under the provisions of paragraph 1 of article 336 of the Code of Commerce, the plaintiff had no right of action having  examined the oil at the time of its delivery; that conceding without admitting that the oil was defective in quality, the  plaintiff had lost its  right of action by failing to make  its claim within  thirty days immediately following the delivery; that the loss plaintiff alleged to have suffered  was due to its own fault; that the coconut oil sold and delivered  to the plaintiff by the defendant was of the quality called for  in the contract of sale; and that the oil having been delivered to, tested, accepted and paid for by the plaintiff, the respective obligations of the parties were, then and  there terminated and extinguished.

The trial of the case consumed considerable time  and the case was not decided until March 15, 1925.  In its decision absolving the defendant from the complaint and from which the plaintiff appeals,  the Court of  First Instance, after a fairly exhaustive discussion of the  evidence, found in substance that it had not been sufficiently  established that the oil  purchased from the defendant was  contaminated at the time of its delivery to the  plaintiff;  that upon the evidence there was reason to believe that certain samples analyzed by the Bureau of Science and found positive  for kapok oil  were not taken from the oil sold by the defendant and that such contamination as there may have been of the oil shipped to the  Portsmouth Cotton Oil Refining Corporation, was likely to have been caused through the impurity of the oil manufactured by  the plaintiff itself, in view of the fact that said  plaintiff was partly engaged in the manufacture of kapok  oil while the  defendant neither dealt in nor  manufactured such oil.  The court further found that the plaintiff, before closing its contract with the defendant, examined the oil to its  satisfaction  and that therefore the  first paragraph of article 336 of the Code of Commerce was applicable  to the case and the plaintiff's cause of action extinguished.

The findings of the court below are vigorously assailed by counsel for the  appellant, but after a careful  examination of the record, we  are not prepared to say that the court erred in its appreciation  of the evidence to such an extent as to justify a reversal of its  decision.   In addition to direct evidence adduced by the defendant, there are also several circumstances which, in our opinion, have not been very  satisfactorily explained by the plaintiff and  which tend to support the conclusions of the trial court and to cast doubt on the correctness of the plaintiff's contention that the oil bought from the defendant was contaminated by an admixture of kapok  oil.

But assuming that such contamination existed, we would still be  of the opinion that  the  plaintiff has established no cause  of action.   The  comparatively  small  quantity of kapok oil alleged to have been  mixed with the coconut oil can only be regarded as an impurity and did not  change the essential character of  the  merchandise; this is  sufficiently  shown by the fact that it after analysis  was sold by the plaintiff to Proctor & Gamble Co. as "Manila Coconut Oil" and at the current New York price for  that  article. In contradistinction to the  contract  between  the plaintiff and the Portsmouth Cotton Oil Refining  Corporation, the contract of sale between the plaintiff  and the defendant contains no express warranty against impurities aside from the stipulation that not more than 5 per cent of free fatty acid would be allowed.  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, which in part reads as follows:

"A purchaser  who, at the time of receiving the merchandise, fully examines the same, shall not have a right of action against the vendor, alleging a defect in the quantity or quality of the merchandise."

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 the 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  (Kelly Springfield Road Roller Co. vs. Sideco, 16 Phil., 345; Government of the Philippine Islands vs. Inchausti & Co., 24 Phil., 315).

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 which reads  as follows:

"Commercial sales  shall not be rescinded by reason  of lesion; but the contracting party who  acted with malice or fraud, in the contract or in its fulfillment, shall indemnify for loss and damage,  without prejudice to the criminal action which may be proper."

The law on the subject  of frauds with reference to sales is practically the same in this jurisdiction as in the United States and we may,  therefore, freely refer to American authorities in that connection.  Alison, in his work on Contracts, 7th edition, at page 165, defines  fraud as "a false representation of fact, made with a knowledge of its falsehood, or recklessly, without belief in its truth, with the intention that  it should be acted upon  by the complaining party, and actually inducing  him to act upon it."  Concealment of the truth is sometimes equivalent to false representations,  and it is here argued that the defendant in not disclosing the existence of kapok oil in the oil sold to the plaintiff,  was guilty of fraud.  In regard to such concealments or nondisclosures,  Mechem, citing authorities, says:

"The concealment which  shall amount to a  false represention is that only which may properly be designated as active.  Mere passive non-disclosure which,  as has been seen,  may suffice to vitiate a contract uberrimae fidei, will not be sufficient here; 'there must be an active attempt to deceive, either by a statement which is false  or which is true so far as it goes, but is accompanied with such a suppression  of facts as to  convey a misleading  impression. 'There must  be some active misstatement  of fact, or, at all  events, such a partial and  fragmentary statement of fact as that  the withholding  of that which is not stated makes that  which is stated absolutely false.'   *   *  *"

(Mechem on  Sales, section 868.)

As will be seen, an intention to deceive  or mislead the other party to his prejudice is an essential element of the fraud here considered.  It  is true that such an intention may sometimes be imputed upon the principle that the party must be presumed to intend the necessary consequences of his own acts  or conduct, and need  not necessarily be proven by  direct evidence, but in the present  case we search the record in vain for anything from which that intention may be definitely  inferred. We may, perhaps, surmise that had there been any mixing of other oils with the coconut oil in question, the defendant would have been aware thereof, but there is nothing from which we can presume that the defendant intended to mislead the plaintiff to his prejudice. It is not disputed that at the time the sale  was  made, kapok oil commanded a higher price in the market than did coconut oil and the  defendant  may  well have been under the impression that a slight admixture of kapok  oil did not substantially impair the general market  value of the oil purchased.  Indeed, there is nothing in the evidence to show that for ordinary purposes, the coconut oil suffered any material impairment in value from the  mixture and it  is to be observed that the  defendant was not advised of the fact that the oil was  sold to the Portsmouth Cotton Oil  Refining  Corporation  under  an  express  warranty against impurities and  possibly  for a special purpose. That it was still of  good merchantable quality clearly appears from the fact that it was bought by Proctor & Gamble Co. at current market prices.  And when it is further considered that the plaintiff, before purchasing, was given full opportunity to. examine the oil and actually did so, it seems obvious that the evidence is not sufficient to overcome the presumption of good faith and to establish fraud on the part of the vendor.  In commercial sales, the  fact that the vendor  does  not volunteer  detailed statements  of all he knows, whether important or not, in regard  to the goods sold by him, is not fraud per se.

The  judgment appealed from is affirmed  with the  costs against the appellant.   So ordered.

Avanceña,  C. J., Street,  Malcolm, Villamor, Romualdez, and  Villa-Real, JJ., concur.
Johnson and Johns, JJ., did not take part.