St. 182, the point decided was that a contract for the purchase of 800 tons of coal at a certain price per ton, "coal to be delivered on board vessels as sent for during the months of August and September," was an entire contract, under which nothing was payable until delivery of the whole, and therefore the seller had no right to rescind the contract upon a refusal to pay for one cargo before that time. In Morgan v. McKee, 77 Pa. St. 223, and in Scott v. Kittanning Coal Co., 89 Pa. St. 231, the buyer's right to rescind the whole contract upon the failure of the seller to deliver one instalment was denied, only because that right had been waived, in the one case by unreasonable delay in asserting it, and in the other by having accepted, paid for, and used a previous instalment of the goods. The decision of the Supreme Judicial Court of Massachusetts in Winchester v. Newton, 2 Allen, 492, resembles that of the House of Lords in Mersey Co. v. Naylor.

Being of opinion that the plaintiff's failure to make such shipments in February and March as the contract required prevents his maintaining this action, it is needless to dwell upon the further objection that the shipments in April did not comply with the contract, because the defendants could not be compelled to take about 1,000 tons out of the larger quantity shipped in that month, and the plaintiff, after once designating the names of vessels, as the contract bound him to do, could not substitute other vessels. See Busk v. Spence, 4 Camp. 329; Graves v. Legg, 9 Exch. 709; Reuter v. Sala, above cited.

Judgment affirmed.

SAME SUBJECT SALES BY SAMPLE.*

BRADFORD v. MANLY.

13 Mass. 139. 1816.

Assumpsit, to recover the difference in value between two casks of cloves, alleged to be sold by sample, to the plaintiff, and the cloves actually delivered in virtue of the sale. At the trial,

* See Sec. 1093, Vol. 8, Cyclopedia of Law.

the plaintiff produced a bill of parcels of six hundred and two pounds of cloves at one dollar fifty cents per pound, on which payment was acknowledged by the defendant. He then produced a witness who testified that on the 4th of January, 1814, the defendant came to the plaintiff's store, with a sample of cloves in a paper, and asked the plaintiff if he wished to purchase some cloves. The witness examined the sample, and found the cloves to be of the best quality of Cayenne cloves.

The sample was not taken from the casks sold, but from an open barrel, out of which those casks had been filled. In May, 1815, the casks were opened, and were found to contain a mixture of Cayenne cloves and an inferior and distinct species of the same article. Before instituting this suit, and after the defect was discovered, the plaintiff offered to return the cloves, but the offer was not accepted. The jury returned a verdict for the plaintiff, having found that there was no fraud in the sale on the part of the defendant.

PARKER, C. J. The first point taken by the defendant's counsel is, that parol evidence was admitted to control or explain the contract in writing which subsisted between the parties.

The objection goes upon the supposition that a common bill of parcels, given upon or after the purchase of goods, is evidence, and the only proper evidence, of such a contract. But it is not so. The bargain is usually made verbally, and without any intention that it shall be put in writing; and the bill of parcels is intended only to show that the goods have been purchased and paid for. It is seldom particular, or descriptive of the whole contract between the parties. But if it were not so, the paper introduced in this case is ambiguous with respect to the subject of the bargain; and the ambiguity is latent, so that parol evidence may be admitted to explain it. It states only that "two casks of cloves" were purchased; leaving it uncertain what kind of cloves, of which it appears in the case that there are at least two kinds, differing materially in quality and value. We think this objection was properly overruled.

We may then come to the principal question, viz., whether the evidence in the cause proved a contract to sell cloves of a different kind from those which were delivered. The defendant exhibited a sample, by which the plaintiff purchased. Among

fair dealers there could be no question but the vendor intended to represent that the article sold was like the sample exhibited; and it would be to be lamented, if the law should refuse its aid to the party who had been deceived in a purchase so made.

The objection is, that no action upon a warranty can be maintained, unless the warranty is express; and that no other action can be maintained, unless there be a false affirmation respecting the quality of the article. If such were the law, it would very much embarrass the operations of trade, which are frequently carried on to a large amount by samples of the articles bought and sold.

The authorities cited by the defendant's counsel have been carefully looked into, and we think they do not militate with this decision; unless it be the case of the bezoar stone, Chandelor v. Lopus, Cro. Jac. 4, Dyer, 75, which we think would not now be received as law in England; certainly not in our country. The vendor sold the stone as and for a bezoar stone, to one unacquainted with such articles, and it turned out to be of inferior value. The court held that no action would lie; and some of the judges stated that even if the vendor had known that it was not a bezoar, and it had been so alleged, an action could not be maintained without an express warranty. The other case is that of Parkinson v. Lee, 2 East, 314. There the hops sold were of the same kind and quality as the sample; but there was an unknown deterioration by fermentation, caused by the grower of the hops, and not by the vendor. Hops being usually sold in pockets, and the quality ascertained by sample, it was held that the innocent vendor was not responsible to the vendee for an unknown inherent defect, without an express warranty. That case does not militate with our opinion' in the case at bar.

The fair import of the exhibition of a sample is, that the article proposed to be sold is like that which is shown as a parcel of the article. It is intended to save the purchaser the trouble of examining the whole quantity. It certainly means as much as this, "The thing I offer to sell is of the same kind, and essentially of the same quality, as the specimen I give you." I do not know that it would be going too far to say that it amounts to a declaration, that it is equally sound and good. But it is not necessary to go so far in the present case, and we are not dis

posed to question the correctness of the decision in Parkinson v. Lee.

It is expressly found by the jury in the case at bar that the cloves delivered were different in kind from those which composed the sample, and inferior in value; not from decay or exposure, but that there is a specific difference in the respective plants from which they are produced. Surely, if a man were to exhibit to me a parcel of Hyson tea as a sample, to induce me to buy a chest, and I should pay him the price of Hyson, and he should deliver me a chest of Bohea or Souchong, I might recover the difference in value, if he should refuse to do me justice, although he did not expressly warrant that the tea in the chest was the same as that in the sample. Indeed the exhibition of a sample must, in all fair dealing, stand in lieu of a warranty or affirmation. It is a silent, symbolical warranty, perfectly understood by the parties, and adopted and used for the convenience of trade.

The cases must be very strong to establish a principle so unjust, and so productive of distrust and jealousy among traders, as that contended for by the defendant's counsel. For what purpose is the sample exhibited, unless it is intended as a representative of the thing to be sold? What would an honorable merchant say if, when he took from a mass of sugar or coffee a small parcel, and offered to sell by it, the man who was dealing with him should ask him if it was a fair sample, and call upon him to warrant it so? Mercantile honor would instantly take the alarm, and if such questions should become necessary, there would be no need of that honor which happily is now general and almost universally relied upon. That there is not an unknown and invisible defect, owing to natural causes, or to previous management by some former dealer, he may not be presumed to affirm when he shows the sample, and as to these particulars an express warranty may be required, consistently with confidence in the fair dealing of the vendor. But that the thing is the same, generically and specifically, as that which he shows for it, he certainly undertakes, and if a different thing is delivered, he does not perform his contract, and must pay the difference, or receive the thing back and rescind the bargain, if it is offered

A case similar to this in principle came before me two or three years ago, at nisi prius. An advertisement appeared in the papers, which was published by a very respectable mercantile house, offering for sale good Caraccas cocoa. The plaintiff made a purchase of a considerable quantity, and shipped it to Spain, having examined it at the store before he purchased; but he did not know the difference between Caraccas and other cocoa. In the market to which he shipped it there was a considerable difference in value in favor of the Caraccas. It was proved that the cocoa was of the growth of some other place, and that it was not worth so much in that market. I held that the advertisement was equal to an express warranty, and the jury gave damages accordingly. The defendants had eminent counsel, and they thought of saving the question; but afterwards abandoned it, and suffered judgment to go. Surely, if a sample of Caraccas cocoa had been shown to the purchaser and any other cocoa had been delivered to him, the case would not have been less strong. We are all decidedly of the opinion, that a sale by sample is tantamount to an express warranty that the sample is a true representative of the kind. There must, therefore, be entered judgment according to the verdict.

Action for the price of goods sold and delivered. Defense, the illegality of the sale. Plaintiffs' agent showed samples of liquors to defendant, at the latter's store in New Hampshire, and received an order for the goods in question, subject to the stipulation stated in the opinion. Plaintiffs forwarded the liquors from their place of business in New York, and defendant paid the freight thereon and used the liquors.

SARGENT, J. In all respects save one, this sale of liquor stands upon the same foundation as the numerous cases reported in our State. That exception is the fact that the defendant, "after the liquors arrived at his store, might examine them, and if not ac