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 manufacturers 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. 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 L.R.A. 653; Ann. Cas. 1917C 327. 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. 4. Beirne v. Dord, 5 N. Y. 95, 55 Am. Dec. 321. 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. 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; 13 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. 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. T rect conclusion in respect to the true character of the contract.14 In some cases the view seems to be taken that the warranty arising on sales by sample is limited to eases where the buyer has no reasonable opportunity to inspect the goods, that if he has full opportunity of inspection and does make a full inspection or fails to make use of his opportunity to do so the rule is caveat emptor.15 The better rule, however, is that a sale by sample with its consequent obligation of warranty may be made whether examination be practicable or not, if the parties so agree.16 It seems that in case of commodities which are baled such as cotton and supposed to be uniform in quality and which cannot be fully inspected without breaking the bales, if a sample is exhibited, the transaction is necessarily to be deemed a sale by sample as so exhibited.17 In such a case it has been held that where a sale of baled cotton, a sample of which is taken or exhibited, is claimed to be an exception to the rule that it is a sale by sample, the burden of proof rests on the party asserting that fact.18 Where a sale of baled cotton was made by sample subject to the condition that on the drawing of fresh samples they should be as good as the sample exhibited, it has been held that the drawing of such fresh samples by the buyer, which corresponded in quality with those exhibited, does not affect the sale as a sale by sample.19 486. Contracts for Sale of Articles Not in Esse.-Technically it seems that a sale by sample contemplates that the goods are in esse, and that the sample is taken from the bulk.20 And it has been held that where it was agreed that the goods sold should be of similar fabric and quality and equal in every respect to samples exhibited, and such goods had no existence at the time, but were thereafter to be manufactured, it is not a sale by sample. Likewise it has been held that one. who offers to manufacture a quantity of picture cards of a certain description does not, by displaying work for the inspection of the buyer, warrant that the cards will equal the work displayed, and therefore if the buyer accepts the cards delivered without inspecting them within. 14. Beirne v. Dord, 5 N. Y. 95, 55 Am. Dec. 321. 15. Barnard v. Kellogg, 10 Wall. 383, 19 U. S. (L. ed.) 987. Notes: 7 Am. Dec. 129; 32 Am. Dec. 439; 24 Am. Rep. 181; 102 A. S. R. 613; Ann. Cas. 1917C 331. 16. Gould v. Stein, 149 Mass. 570, 22 N. E. 47, 14 A. S. R. 455, 5 L.R.A. 213; Beirne v. Dord, 5 N. Y. 95, 55 Am. Dec. 321. v. Jenkins, 12 Wend. (N. Y.) 566, 27 Am. Dec. 158. Notes: 32 Am. Dec. 439; 102 A. S. R. 613; 70 L.R.A. 658; Ann. Cas. 1917C 335. 18. Boorman v. Jenkins, 12 Wend. (N. Y.) 566, 27 Am. Dec. 158. 19. Beebe v. Robert, 12 Wend. (N. Y.) 413, 27 Am. Dec. 132. Note: 102 A. S. R. 613. Notes: 7 Am. Dec. 129; 102 A. S. 1917C 327. R. 614. 17. Beebe v. Robert, 12 Wend. (N. N. Y.) 413, 27 Am. Dec. 132; Boorman 1. Brigg v. Hilton, 99 N. Y. 517, 3 E. 51, 52 Am. Rep. 63. a reasonable time to see if they conform to the description, or if he makes sales after learning of defects, he will be precluded from claiming damages because of an alleged nonconformity, as this is not a sale by sample giving rise to a warranty of conformity. It has also been held that a sale of articles to be manufactured according to a model is not a sale by sample. Other cases, however, have treated executory contracts for the sale of goods not in esse as in effect sales by sample, if not technically so. The rule requiring the goods to be in esse in order that the sale may be regarded as a sale by sample and thus raise a warranty of conformity does not preclude an express warranty of quality in an executory contract for the sale of goods not in esse from constituting a valid and binding warranty which will come into full operation and effect on the delivery of goods under the contract.5 487. Proof of Sale by Sample Generally.-Ordinarily the question whether a sale is by sample is a question of fact for the jury to find from the evidence in each case, and the burden of proving that fact is on the party alleging it. Evidence of a local usage respecting sales by sample is not admissible to show what was the intent of the parties to a particular sale, in the employment of a sample in their negotiations for the purpose of showing that the transaction was in fact a sale by sample, and thereby raise an implied warranty of conformity to bulk. But it has been held permissible to show a local usage to sell certain commodities by sample on account of the injury to them which would result from their removal from the bales for the purpose of showing that the sale in question was a sale by sample.9 488. Admissibility of Oral Evidence to Show Sale by Sample.If the written evidence of the transaction does not purport to be a complete transcript of the transaction, 10 oral evidence is admissible to show that the sale was by sample and give rise to the warranty incident thereto.11 Where the bill of sale merely showed a sale of commodities by generic name without designation of quality, oral evi dence of the exhibition of and sale by a sample has been held admissible for the purpose of establishing a warranty that the bulk will 2. Minneapolis Selling Co. v. Cowin, 153 la. 129, 133 N. W. 338, 40 L.R.A. (N.S.) 513. 3. Note: Ann. Cas. 1917C 332, 335. 4. Notes: 70 L.R.A. 657; Ann. 1917C 320, 327. 5. See supra, par. 428. Cas. 8. Beirne v. Dord, 5 N. Y. 95, 55 Am. Dec. 321. 9. Boorman v. Jenkins, 12 Wend. (N. Y) 566, 27 Am Dec. 158. 10. See supra, par. 219-220, as to the admissibility generally of oral evidence to add to or vary a contract of sale, where the writing does not pur 6. Beirne v. Dord, 5 N. Y. 95, 55 port to evidence the entire contract. 11. Bradford v. Manly, 13 Mass. 138, 7 Am. Dec. 122. Note: 7 Am. Dec. 129. ་ comply with the sample; 12 and the broad view seems to have been taken that, though the contract is in writing and contains no reference to a sale by sample, oral evidence is admissible to show that the sale was a sale by sample, on the theory evidently that this is in effect the use of oral evidence to identify the subject matter of the sale.18 On the other hand if the writing is itself a complete or purports to be a complete transcript of the transaction the general rule as regards adding thereto or varying the same by parol evidence is ordinarily held to apply and that therefore oral evidence to show that the sale was by sample is not admissible.14 Construction and Scope of Warranty 489. In General.-An express warranty will not be extended by implication from other parts of the contract in which it occurs.15 Though a warranty need not necessarily relate to the quality, condition or properties of the thing sold at the time of the sale but may be prospective in its operation,16 the ordinary warranty as to condition or quality relates to the time of sale, and if broken at all is broken when it is made.17 In case of a sale of a commodity, such as sugar, f. o. b. point of shipment, a general warranty of quality has been held to relate to the condition at such point and not at the point of destination, though the contract also provided that the commodity was to be thoroughly sampled and tested on arrival.18 Where the warranty is that machinery to be supplied for a certain steamboat will be "adapted for and suitable for the boat," the seller is only required to furnish suitable machinery, the buyer taking the risk of the boat being strong enough to endure the weight, shock of running the machinery, and of its friction when in motion.19 The phrase "war 12. Bradford v. Manly, 13 Mass. 138, 7 Am. Dec. 122; Boorman v. Jenkins, 12 Wend. (N. Y.) 566, 27 Am. Dec. 158. Note: 5 A. S. R. 198. 13. See Boorman v. Jenkins, 12 Wend. (N. Y.) 566, 27 Am. Dec. 158. 14. Harrison v. McCormick, 89 Cal. 327, 26 Pac. 830, 23 A. S. R. 469; Pickrell, etc., Co. v. Wilson Wholesale Co., 169 N. C. 381, 86 S. E. 187, Ann. Cas. 1917C 344; Wiener v. Whipple, 53 Wis. 298, 10 N. W. 433, 40 Am. Rep. 775. See also Weston v. Barnicoat, 175 Mass. 454, 56 N. E. 894, 49 L.R.A. 612. Notes: 7 Am. Dec. 130; 27 Am. Dec. 166; 70 L.R.A. 654; 19 L.R.A. (N.S.) 1190, 1191; Ann. Cas. 1917C 332; 3 Eng. Rul. Cas. 464; 23 Eng. Rul. Cas. 479. See supra, par. 213 et seq., as to the admissibility of oral evidence to vary or add to written contracts of sale generally. 15. Dickson v. Zizinia, 10 C. B. 602, 70 E. C. L. 602, 20 L. J. C. Pl. 73, 23 Eng. Rul. Cas. 494. 16. Notes: 126 A. S. R. 946; 49 L.R.A. (N.S.) 1152. 17 Osborn v. Nicholson, 13 Wall. 654, 20 U. S. (L. ed.) 689; Caldbeck v. Simanton, 82 Vt. 69, 71 Atl. 881, 20 L.R.A. (N.S.) 844. As to limitation of actions on such a warranty, see infra, par. 513. 18. Lord v. Edwards, 148 Mass. 476, 20 N. E. 161, 129 A. S. R. 581, 2 L.R.A. 519. 19. Fisk v. Tank, 12 Wis. 276, 78 Am. Dec. 737. |