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. ranted for" a certain time, in the sale of an article which is to be put to constant use under which it may give way if defectively made, such as a piano, is not a warranty merely that the article will remain a piano for the stated time, but constitutes a warranty that it has no inherent defect of material or workmanship that will cause it to break or give way within the specified time; such a warranty, however, does not extend to style or grade.20 A warranty as to the capacity of machinery for a manufacturing plant must be regarded as only applicable where the plant is operated under the usual and reasonably favorable circumstances and conditions,' but the question whether the plant was so operated is ordinarily one for the determination of the jury. A warranty in the sale of a boiler that it is "to be allowed one hundred and thirty pounds of steam working pressure by United States inspectors" has no reference to the capacity of the boiler, and is not to be construed as a warranty that it will produce and maintain a working pressure to that amount. A warranty that a horse is a gelding imports that the horse was properly castrated, and it is broken if the horse is a ridgeling. In the sale of a stallion the warranty as to its breeding capacity often places as the test the percentage of mares covered which are got with foal, and when such is the case effect is given thereto, but when no such test is provided for and the warranty is merely that the stallion is a good foal getter or the like, this requires that a reasonable number of the mares covered shall be got with foal. A warranty that potatoes are of a "good" quality has been held to import merely that they are of good merchantable quality, and free from latent defects not discoverable by ordinary attention on the part of the buyer. It would seem that the sale of a safe though warranted to be fireproof should not be construed to import a warranty that the safe will protect its contents from any given exposure to fire, but rather that the same is made of fireproof material. Where the evidence is conflicting the question whether the chattels comply with the warranty is ordinarily one of fact for the determination of the jury.8 20. Snow v. Schonmacher Mfg. Co., 69 Ala. 111, 44 Am. Rep. 509. 1. Larson v. Aultman, etc., Co., 86 Wis. 281, 56 N. W. 915, 39 A. S. R. 893. 2. Larson v. Aultman, etc., Co., 86 Wis. 281, 56 N. W. 915, 39 A. S. R. 893. 3. Milwaukee Boiler Co. v. Duncan, 87 Wis. 120, 58 N. W. 232, 41 A. S. R. 33. 6. Northern Supply Co. v. Wangard, 123 Wis. 1, 100 N. W. 1066, 107 A. S. R. 984. 7. Richardson v. Carlis, 26 S. D. 202, 128 N. W. 168, Ann. Cas. 1913B 47. See also Diebold Safe, etc., Co. v. Huston, 55 Kan. 104, 39 Pac. 1035, 28 L.R.A. 53. As to the general meaning of the word "fireproof," see Ann. Cas. 1913B 50 note. 8. Webster City First Nat. Bank v. 4. Douglass v. Moses, 89 Ia. 40, 56 Dutcher, 128 Ia. 413, 104 N. W. 497, 1 L.R.A. (N.S.) 142. N. W. 271, 48 A. S. R. 353. 5. Note: Ann. Cas. 1916A 573. 490. Unknown Defects.-If the action is one for fraudulent representations, knowledge of the falsity of the representation is necessary to impose liability on the seller, but it is otherwise in case of a general warranty which is deemed to cover all defects within its scope whether known to the seller or not,10 and whether the warranty is express or implied. For this reason it is held that an averment of scienter is unnecessary in an action for breach of warranty,12 and if alleged need not be proven.18 On the other hand the warranty may by its express terms be confined to defects known to the seller.14 491. Known and Patent Defects; Majority View. The general rule is that open and visible defects in the quality or condition of goods sold are not reached by the warranty, though they are inconsist ent with its terms. 15 Though a general warranty of soundness is in writing, oral evidence is nevertheless admissible to charge the buyer with knowledge of any particular defect.16 The rule that a general warranty of quality or soundness will not extend to open and known defects is held applicable to an executory contract of sale, and there 9. See infra, par. 635. 10. Shippen v. Bowen, 122 U. S. 575, 7 S. Ct. 1283, 30 U. S. (L. ed.) 1172; Wren v. Wardlaw, Minor (Ala.) 363, 12 Am. Dec. 60; Bartholomew v. Bushnell, 20 Conn. 271, 52 Am. Dec. 338; Williamson v. Walker, 24 Ga. 257, 71 Am. Dec. 119; Swayne v. Waldo, 73 Ia. 749, 33 N. W. 78, 5 A. S. R. 712; Tyler v. Moody, 111 Ky. 191, 63 S. W. 433, 98 A. S. R. 406, 54 L.R.A. 417; Farrell V. Manhattan Market Co., 198 Mass. 271, 84 N. E. 481, 126 A. S. R. 436, 15 Ann. Cas. 1076, 15 L.R.A. (N.S.) 884; Mahurin v. Harding, 28 N. H. 128, 59 Am. Dec. 401; Beeman v. Buck, 3 Vt. 53, 21 Am. Dec. 571; Drew v. Edmunds, 60 Vt. 401, 15 Atl. 100, 6 A. S. R. 122; Trice v. Cockran, 8 Grat. (Va.) 442, 56 Am. Dec. 15; Cameron v. Mount, 86 Wis. 477, 56 N. W. 1094, 22 L.R.A. 512. Note: 21 Ann. Cas. 1003. 11. Gerst v. Jones, 32 Grat. (Va.) 518, 34 Am. Rep. 773. 12. Schuchardt v. Allens, 1 Wall. 359, 17 U. S. (L. ed.) 642; Shippen v. Bowen, 122 U. S. 575, 7 S. Ct. 1283, 30 U. S. (L. ed.) 1172; Wren v. Wardlaw, Minor (Ala.) 363, 12 Am. Dec. 60. 13. Schuchardt v. Allens, 1 Wall. 359, 17 U. S. (L. ed.) 642; Hyatt v. Boyle, 5 Gill & J. (Md.) 110, 25 Am. 14. West v. Emery, 17 Vt. 583, 44 Am. Dec. 356. Note: 3 L.R.A. 185. 15. Tabor v. Peters, 74 Ala. 90, 49 Am. Rep. 804; North Georgia Milling Co. v. Henderson Elevator Co., 130 Ga. 113, 60 S. E. 258, 24 L.R.A. (N.S.) 235; Kenner v. Hooding, 85 Ill. 264, 28 Am. Rep. 615; Connersville v. Wadleigh, 7 Blackf. (Ind.) 102, 41 Am. Dec. 214; Meickley v. Parsons, 66 Ia. 63, 23 N. W. 265, 55 Am. Rep. 261; Fisher v. Pollard, 2 Head (Tenn.) 314, 75 Am. Dec. 740; Northfield Nat. Bank v. Arndt, 132 Wis. 383, 112 N. W. 451, 12 L.R.A. (N.S.) 82. See also Larson v. Aultman, etc., Co., 86 Wis. 281, 56 N. W. 915, 39 A. S. R. 893; Northern Supply Co. v. Wangard, 117 Wis. 624, 94 N. W. 785, 98 A. S. R. 963. Notes: 53 Am. Dec. 179; 11 A. S. R. 879; 3 L.R.A. 184; 12 L.R.A. (N.S.) 82; 24 L.R.A. (N.S.) 236; 35 L.R.A. (N.S.) 504; 21 Ann. Cas. 1004. 16. Fisher V. Pollard, 2 Head (Tenn.) 314, 75 Am. Dec. 740. |