an important matter, a sale by sample imports a warranty that the brick will conform to the sample in color.14 If the commodity consists of several varieties and qualities, and the sample is made by mixing proportional parts of the different varieties and qualities, the warranty is that the whole quantity, if mingled together, would be of a quality equal to the sample.15 It has been held that the warranty does not imply that the bulk will answer every purpose which the sample would. Thus, where it was a fact well known to the trade that a cargo of southern wheat would heat and that this might render it unfit for malting though it would not be thereby injured for flour, and a sample was taken in the usual way by thrusting the arm into the bulk, and such sample when tested by the buyer was found fit for malting, it has been held that a warranty that the bulk will also be fit for such purpose will not be implied.16 The view has also been taken that the seller is to be held only to warrant that the bulk shall correspond with the sample in kind, and be simply merchantable, unless there are circumstances to fix the character of the sample as a standard of quality; 17 that the sample under such circumstances, pure and simple, becomes a guaranty only that the articles to be delivered shall follow its kind, and be at the most simply merchantable,18 and that it has been held that when the thing is sold by sample, and without other express warranty, the purchaser takes it at his own risk, unless it should prove to be an article different in kind, all gradations in quality being at the hazard of the buyer; 19 but even where such a rule ordinarily prevails the parties may by express agreement make the sample the test of quality as well as kind.20 Ordinarily he warranty is not to be extended further than that the bulk shall conform to the sample, and a further warranty that the commodity is

14. Gascoigne v. Cary Brick Co., 217 Mass. 302, 104 N. E. 734, Ann. Cas. 1917C 336; Jorgensen v. Gessell Pressed Brick Co., 45 Utah 31, 141 Pac. 460, Ann. Cas. 1917C 309.

15. Notes: 102 A. S. R. 614; Ann. Cas. 1917C 318.

16. Sands v. Taylor, 5 Johns. (N. Y.) 395, 4 Am. Dec. 374.

17. Borrekins v. Bevan, 3 Rawle (Pa.) 23, 23 Am. Dec. 85; Fraley v. Bispham, 10 Pa. St. 320, 51 Am. Dec. 486; Boyd v. Wilson, 83 Pa. St. 319, 24 Am. Rep. 176.

Notes: 7 Am. Dec. 127; 70 L.R.A. 660; Ann. Cas. 1917C 325; 23 Eng. Rul. Cas. 464.

that unless the parties shall agree otherwise, there shall be an implied warranty on the part of the seller that the goods sold are the same in quality as the sample shown. See notes 70 L.R.A. 660, Ann. Cas. 1917C 327.

18. Boyd v. Wilson, 83 Pa. St. 319, 24 Am. Rep. 176.

19. Fraley v. Bispham, 10 Pa. St. 320, 51 Am. Dec. 486.

20. Notes: 70 L.R.A. 661; Ann. Cas. 1917C 326.

1. De Witt v. Berry, 134 U. S. 306, 10 S. Ct. 536, 33 U. S. (L. ed.) 896; Hastings v. Lovering, 2 Pick. (Mass.) 214, 13 Am. Dec. 420; Remy v. Healy, 161 Mich. 266, 126 N. W. 202, 21 Ann. In Pennsylvania, where this view Cas. 74, 29 L.R.A. (N.S.) 139; Mayer was taken in the earlier cases, it is pro- v. Dean, 115 N. Y. 556, 22 N. E. 261, vided by the Act of April 13, 1887, 5 L.R.A. 540; Studer v. Bleistein, 115

fit for the purpose intended will not, it has been held, be implied. It has been held that if the goods correspond with the sample it is not necessary that they have special merchantable qualities.

481. Latent Defects Common to Sample and Bulk.-If there be a latent defect in the bulk, and in the sample itself as a part thereof, and this defect is unknown and cannot be discovered by examination, it is the general rule that there is no implied warranty against this defect. Thus where clothing was sold by sample, the seller being a jobber and not the manufacturer, it has been held that if the goods delivered conformed to the sample, there is no implied warranty against a latent defect common to both. And where a contract by its terms secures to the buyer the right to have the bulk of the goods. correspond as to quality and appearance to a sample on which the sale was based, the buyer has been held precluded from showing by parol a more enlarged or different contract, by evidence of representations that the mustard seed, the subject matter of the contract, was clean and free from dirt and impurity, where both the bulk and the sample were defective in this respect, which could not be discovered by inspection. If a manufacturer sells by sample, a warranty that the commodity will be free from latent defects due to the process of manufacture will also be implied though the defect may also exist in the sample. The extent of the warranty in sales by sample is given a broader scope by an express provision of the Sale of Goods Acts 1893, which provide that "there is an implied condition that the goods shall be free from any defects rendering them unmerchantable which would not be apparent on reasonable examination of the sample."

482. Usage of Trade as Extending or Varying Warranty.-There is some conflict in the authorities as to whether evidence of a custom or usage is admissible to control or vary the effect of a sale by sample.8 While in a number of cases evidence of usages as affecting the rights and liabilities of the parties in case of sales by sample has been

N. Y. 316, 22 N. E. 243, 5 L.R.A. 702;
Carnochan v. Gould, 1 Bailey L. (S.
C.) 179, 19 Am. Dec. 668.

Notes: 70 L.R.A. 661; Ann. Cas. 1917 318.

2. Note: Ann. Cas. 1917C 321. 3. Note: 5 L.R.A. 703.

4. Dickinson v. Gay, 7 Allen (Mass.) 29, 83 Am. Dec. 656; Remy v. Healy, 161 Mich. 266, 126 N. W. 202, 21 Ann. Cas. 74, 29 L.R.A. (N.S.) 139; Mayer v. Dean, 115 N. Y. 556, 22 N. E. 261, 5 L.R.A. 540; Carnochan v. Gould, 1 Bail. L. (S. C.) 179, 19 Am. Dec. 668.

Notes: 7 Am. Dec. 128; 24 Am. Rep. 182; 70 L.R.A. 665; 29 L.R.A. (N.S.) 141; Ann. Cas. 1917C 319, 323.

5. Remy V. Healy, 161 Mich. 266, 126 N. W. 202, 21 Ann. Cas. 74, 29 L.R.A.(N.S.) 139 (the defect in this case consisted of the manner in which the material was cut, the warp not running lengthwise of the garment).

6. Mayer v. Dean, 115 N. Y. 556, 22 N. E. 261, 5 L.R.A. 540.

7. See infra, par. 483.
8. Note: 7 Am. Dec. 130.

admitted, the better rule seems to be that, as evidence of a usage to vary the legal effect of a contract of sale is not admissible to vary a general rule of law applicable to the transaction,10 a usage of trade enlarging or extending the warranty of conformity to sample cannot be given effect.11 Thus a merchant in ordering ladies' garments by sample cannot rely on a custom to have the warp run lengthwise of the garment to raise a warranty that it will do so, if it does not do so in the sample which he inspects, 12 and it is held that a local usage is inadmissible to engraft on a sale by sample a warranty against latent defects common to both the sample and the bulk.18

483. Sale by Description or by Manufacturer and by Sample.Sometimes it happens that a sale is made by description and at the same time a sample is exhibited. And while the authorities are not in accord, some cases taking the view that the sample is the criterion,14 the better view is that a double warranty arises, the one that the commodity answers the description, and the other that in quality it will be equal to the sample.15 Thus where in the contract of sale the words of description were "as per samples" and "of second quality" it was held that the goods must be of second quality, as well as equal to the sample, and if the goods are not of the second quality the warranty is broken whether or not they were equal to the samples.16 This rule is carried into the Sale of Goods Acts, which provide that "where there is a contract for the sale of goods by description there is an implied condition that the goods shall correspond with the description; and if the sale be by sample, as well as by description, it is not sufficient that the bulk of the goods correspond with the sample if the goods do not also correspond with the description." Where the

9. Note: 7 Am. Dec. 130. 10. See supra, par. 229 et seq. 11. Barnard v. Kellogg, 10 Wall. 383, 19 U. S. (L. ed.) 987; Dickinson v. Gay, 7 Allen (Mass.) 29, 83 Am. Dec. 656; Remy v. Healy, 161 Mich. 266, 126 N. W. 202, 21 Aun. Cas. 74, 29 L.R.A. (N.S.) 139. Note: 7 Am. Dec. 130. 12. Remv V. Healy, 161 Mich. 266, 126 N. W. 202, 21 Ann. Cas. 74, 29 L.R.A. (N.S.) 139.

13. Dickinson V. Gay, 7 Allen (Mass.) 29, 83 Am. Dec. 656; Boardman v. Spooner, 13 Allen (Mass.) 353, 90 Am. Dec. 196. See the preceding paragraph as to the general effect of a latent defect common to both bulk and sample.

14. De Witt v. Berry, 134 U. S. 306, 10 S. Ct. 536, 33 U. S. (L. ed.) 896; Swett v. Colgate, 20 Johns. (N.

Y.) 196, 11 Am. Dec. 266; Welsh v.
Carter, 1 Wend. (N. Y.) 185, 19 Am.
Dec. 473; Carson v. Baillie, 19 Pa.
St. 378, 57 Am. Dec. 659.

Note: 70 L.R.A. 664.

15. Gould v. Stein, 149 Mass. 570, 22 N. E. 47, 14 A. S. R. 455, 5 L.R.A. 213; Studer v. Bleistein, 115 N. Y. 316, 22 N. E. 243, 5 L.R.A. 702; Tye v. Fynmore, 3 Camp. 462, 14 Rev. Rep. 809, 23 Eng. Rul. Cas. 440; Azemar v. Casella, L. R. 2 C. P. 431, 36 L. J. C. Pl. 124, 16 L. T. N. S. 571, 15 W. R. 998, 23 Eng. Rul. Cas. 441.

Notes: 7 Am. Dec. 128; 102 A. S. R. 614; 70 L.R.A. 663; 35 L R.A. (N.S.) 290; Ann. Cas. 1917C 316; 23 Eng. Rul. Cas. 458, 464.

16. Gould v. Stein, 149 Mass. 570, 22 N. E. 47, 14 A. S. R. 455, 55 L.R.A. 213.

sale is by a manufacturer of his own product and also by sample, in addition to the warranty of conformity, it is generally held that there is also an implied warranty as in other cases of sales by manufac turers 17 that the article is free from latent defects due to negligence in the process of manufacture. 18 But in such a case there is no implied warranty of fitness, 19 and where a known, described, and definite article, a sample of which is exhibited, is ordered of a manufacturer, there is no implied warranty that it will answer the particular purpose for which the buyer intended it, even though the manufacturer knew that it was being purchased for that purpose.20

484. What Constitutes Sale by Sample Generally.-A sale by sample is ordinarily where a small quantity of any commodity is exhibited by the seller as a fair specimen of a larger quantity, called the bulk. The mere circumstance, however, that the seller exhibits a sample at the time of the sale will not of itself make it a sale by sample, so as to subject the seller to liability on a warranty as to the nature and quality of the goods; because it may be exhibited, not as a warranty that the bulk corresponds to it, but merely to enable the purchaser to form a judgment on its kind and quality. And as a general rule to constitute a sale by sample it must appear that the parties contracted solely with reference to the sample exhibited; that they mutually understood that they were dealing with the sample with an agreement or understanding that the bulk of the commodity corresponded with it. On the other hand if the contract be connected by the circumstances attending the sale with the sample, and refer to it, and it be exhibited as the inducement to the contract, it may be a sale by sample; and then the consequence follows that the seller warrants the bulk of the goods to correspond with the specimen. exhibited as a sample. A sale is none the less a sale by sample because

17. See supra, par. 464 et seq. 18. Nixa Canning Co. v. Lehmann Higginson Grocer Co., 70 Kan. 664, 79 Pac. 141, 70 L.R.A. 653; Bierman v. City Mills Co., 151 N. Ý. 482, 45 N. E. 856, 56 A. S. R. 636, 37 L.R.A. 799.

Notes: 70 L.R.A. 665; 29 L.R.A. (N.S.) 139; Ann. Cas. 1917C 322, 324; 10 S. Ct. 536; 23 Eng. Rul. Cas. 478.

19. De Witt v. Berry, 134 U. S. 306, 33 U. S. (L. ed.) 896.

2. Tye v. Fynmore, 3 Camp. 462, 14 Rev. Rep. 809, 23 Eng. Rul. Cas. 440; Beirne v. Dord, 5 N. Y. 95, 55 Am. Dec. 321; Pickrell, etc., Co. v. Wilson Wholesale Co., 169 N. C. 381, 86 S. E. 187, Ann. Cas. 1917C 344. See also Barnard v. Kellogg, 10 Wall. 383, 19 U. S. (L. ed.) 987; Weston v. Barnicoat, 175 Mass. 454, 56 N. E. 619, 49 L.R.A. 612.

Notes: 7 Am. Dec. 126; 24 Am. Rep. 181; 102 A. S. R. 613; 70 L.R.A. 654; Ann. Cas. 1917C 330; 23 Eng. Rul. Cas. 464.

3. Notes: 7 Am. Dec. 126; Ann. Cas. 1917C 327.

20. Note: 29 L.R.A.(N.S.) 140. As to implied warranty of fitness in case of known and definite articles sold by manufacturers, see supra, par. 465. 1. Notes: 102 A. S. R. 613; 70 Am. Dec. 321. L.R.A. 653;. Ann. Cas. 1917C 327.

4. Beirne v. Dord, 5 N. Y. 95, 55

the sample is delivered some months before the sale and is in the possession of the buyer, not the seller. The fact that the samples are drawn by the buyer or his agent with the consent of the seller and the sale made on the faith thereof does not necessarily prevent it from being a sale by sample; but it has been held that on a sale of tobacco by a sample drawn by the state inspector in the mode prescribed by law, the seller having no more knowledge of the condition of the bulk than the buyer, the exhibition of the sample does not amount to a warranty as to quality, as it is not properly the case of a sale by sample which ordinarily requires that the seller adopt the sample as his own description of the bulk. There may be a sale by sample although at the time of the sale the sample is no longer in existence, it having been destroyed in the process of testing its quality. The fact that a sale by sample as an executory contract was within the statute of frauds does not prevent it, if carried out by a delivery and acceptance of the subject matter, from operating as a sale by sample so as to give rise to the warranty of conformity. Though the contract calls for goods equal to sample and if no sample was in fact sent or agreed on, this cannot be considered in any way a sale by sample. 10

485. Opportunity for Inspection. That a personal examination of the bulk of the goods by the buyer at the time of the sale is not practicable or convenient furnishes no sufficient ground of itself to say that the sale is by sample.11 And it is held as a general rule that where a commodity is sold in bales or barrels, the fact that the buyer cuts open and examines some of them and has full opportunity to examine the rest does not establish a sale by sample.12 The want of an opportunity for examination, from whatever cause, is a strong fact in reference to the question of the character of the sale, whether it was or not made by sample; 18 and where the acts and declarations of the parties in making the contract are of doubtful construction, evidence that it was impracticable or inconvenient to examine the bulk of the goods would be proper, and in connection with evidence of other circumstances attending the transaction might aid in coming to a cor

5. Note: Ann. Cas. 1917C 329. 6. Boorman v. Jenkins, 12 Wend. (N. Y.) 566, 27 Am. Dec. 158.

Note: 102 A. S. R. 613.

Notes: 70 L.R.A. 655; Ann. Cas. 1917C 331.

12. Barnard v. Kellogg, 10 Wall. 383, 19 U. S. (L. ed.) 987; Salisbury

7. Notes: 70 L.R.A. 654; Ann. Cas. v. Stainer, 19 Wend. (N. Y.) 159, 32 1917C 333.

8. Note: Ann. Cas. 1917C 328.

Am. Dec. 437; Beirne v. Dord, 5 N.
Y. 95, 55 Am. Dec. 321. See also

9. Foot v. Bentley, 44 N. Y. 166, 4 Vanderhorst v. MacTaggart, 1 Brev. Am. Rep. 652.

10. Wisconsin Red Pressed Brick Co. v. Hood, 67 Minn. 329, 67 N. W. 1091, 64 A. S. R. 418.

(S. C.) 269, 2 Am. Dec. 667.

Notes: 102 A. S. R. 613; 70 L.R.A. 655; Ann. Cas. 1917C 331.

13. Schuchardt v. Allen, 1 Wall. 359,

11. Beirne v. Dord, 5 N. Y. 95, 55 17 U. S. (L. ed.) 642; Beirne v. Dord, Am. Dec. 321.

5 N. Y. 95, 55 Am. Dec. 321.