In the second case, however, if the parties purport to make an executed sale and the goods are clearly identified as being the goods in regard to which the bargain related, there seems no reason why title should not pass though the goods be not equal to sample.67 In case the goods in regard to which parties are dealing are not specified, the bargain is necessarily executory, and even though the goods are specified, the bargain may, nevertheless, be executory if the parties so intend. But these cases need not be distinguished, so far as the obligation of the seller is concerned. His obligation in each of them is the same. If he does not deliver the goods equal to the sample, whether the bargain was a sale or a contract to sell, he will be liable. The buyer's remedies may, however, vary and the acceptance of the goods may have an effect in destroying this liability, and the difference in this respect, if any, in the several cases, will be hereafter considered. Risk of loss and other incidents of title will also be affected if the sale is executed.

§ 1002. A sample is a term of the contract.

doubt that the goods in question were the goods as to which the parties had been bargaining, although not possessing the nature or quality guaranteed. See also infra, §§ 1008, 1009.

In the typical case of a contract to sell or a sale by sample, the defendants, guaranteeing them equal to a sealed sample. The sample was of "long staple Salem." The bales were "Western Madras," which required different machinery to make it up. The defendants refused to accept the bales, and it was held they were not bound to, in spite of a clause in the contract "should the quality prove inferior to the guarantee, a fair allowance to be made." The court held that there was an essential difference of the species of the sample and the cotton tendered. See also Varley v. Whipp, [1900] 1 Q. B. 513; Gill v. M'Dowell, [1903] 2 Ir. K. B. 463; Gardner v. Lane, 12 Allen, 39; s. c., 9 Allen, 492, 85 Am. Dec. 779, 98 Mass. 517; Abel v. Murphy, 43 N. Y. Misc. Rep. 648, 88 N. Y. S. 256. These decisions go farther than the text in since all of them there were other means of identifying the goods than the sample or description, so that in fact there could be no

67 As to what constitutes sufficient identification, see Holmes, Common Law, 310, commenting on Gardner v. Lane, 12 Allen, 39; s. c., 9 Allen, 492, 85 Am. Dec. 779, 98 Mass. 517. In this case the purchaser was held to have no title as against the seller's creditors to specific barrels pointed out to the buyer, but erroneously stated to contain No. 1 mackerel, whereas in fact some contained No. 3 mackerel and some contained salt. The subject-matter of the sale was here identified both as being the contents of specific barrels and also by description. The primary intention of the buyer was probably not to take title to those specific barrels, but rather to take title to No. 1 mackerel.

the seller expressly agrees or guarantees that the bulk of the goods are, or shall be, equal to the sample. There can be no question of his obligation to furnish such goods or of his liability in case he fails to do so. This has often been decided.68 In Pennsylvania alone a narrower obligation was formerly placed upon the seller. He was held bound to furnish goods of the same kind as the sample, but not of the same quality.69 But the Pennsylvania law was corrected by a statute providing that there should be a warranty in a sale by sample that the bulk is of the same quality as the sample; 71 and in 1915 the Uniform Sales Act was enacted. It is also settled that if the goods do not correspond with the sample, the buyer may refuse to receive them.72 The English Sale of

68 Parkinson v. Lee, 2 East, 314 (Lawrence, J., said of such a bargain, that the contract was "no more than that the bulk should agree with the sample"); Parker v. Palmer, 4 B. & Ald. 387 (Chief Justice Abbott said: "The words 'per sample' introduced into this contract may be considered to have the same effect as if the seller had in express terms warranted that the goods sold should answer the description of a small parcel exhibited at the time of the sale"); Meyer v. Everett Pulp Co., 193 Fed. 857, 113 C. C. A. 643; Love v. Barnesville Mfg. Co., 3 Pennew. 152, 50 Atl. 536; Imperial Portrait Co. v. Bryan, 111 Ga. 99, 36 S. E. 291; Gunther v. Atwell, 19 Md. 157; Whitmore v. South Boston Iron Co., 2 Allen, 52; Atwater v. Clancy, 107 Mass. 369; Borden v. Fine, 212 Mass. 425, 98 N. E. 1073; Texas Fruit Co. v. Lane, 101 Mo. App. 712, 74 S. W. 100; Bloom v. Reisman, 135 N. Y. S. 547, 76 Misc. 524; Dickinson Brick Co. v. Crowe, 63 Wash. 550, 115 Pac. 1087.

69 Boyd v. Wilson, 83 Pa. St. 319, 24 Am. Rep. 176. This rule was in line with the Pennsylvania decisions in regard to sales by description. Fraley v. Bisphan, 10 Pa. St. 320, 51 Am. Dec. 486. And generally in regard to

70

representations inducing a sale. Williston, Sales § 199. On the whole subject, the Pennsylvania law has been open to criticism, but the enactment of the Uniform Sales Act has presumably corrected its archaisms.

70 Act of April 13, 1887 (P. L. 21, § 1).

71 See Cox v. Andersen, 194 Mass. 136, 80 N. E. 236.

72 Hibbert v. Shee, 1 Campb. 113 (Lord Ellenborough said in regard to a sale by sample: "If I buy a commodity wholly discordant to that which is promised me, I am not bound to accept of a compensation for the dissimilarity. This is not a performance of the contract"); Wells v. Hopkins, 5 M. & W. 7; Azemar v. Casella, L. R. 2 C. P. 431, 466; McGee v. Billingsley, 3 Ala. 679; Penn v. Smith, 93 Ala. 476, 9 So. 609, 98 Ala. 560, 12 So. 818, 104 Ala. 445, 18 So. 38; Merriman v. Chapman, 32 Conn. 146; Worcester Mfg. Co. v. Waterbury Brass Co., 73 Conn. 554, 48 Atl. 422; Love v. Barnesville Mfg. Co., 3 Pennew. 152, 50 Atl. 536; Gill v. Kaufman, 16 Kans. 571; Home Lightning Rod Co. v. Neff, 60 Iowa, 138, 14 N. W. 216. Gunther v. Atwell, 19 Md. 157; Pike v. Fay, 101 Mass. 134; National Engraving Co. v. Queen City Laundry,

Goods Act by calling the obligation of the seller a condition implies that in every case the seller may thus refuse to receive the goods, making no exception in case the goods are specific goods identified in some other way than by the sample. The American Sales Act, though it calls the obligation a warranty, produces the same result because rescission is allowed as a remedy for breach of warranty. To permit the buyer to reject the goods in every case if not up to sample seems in conformity with justice, and if, as under the American Sales Act, rescission is allowed of an executed sale for breach of warranty, there is entire consistency in the law. But where rescission of an executed transfer of title is not allowed, as in England, an absolute right given in the case of a sale by sample seems inconsistent 73 with the general rule. Whether a buyer who has received and accepted the goods although not conforming to the sample, has assented to receive those specific goods as full satisfaction of the seller's obligation has been previously considered.74 But if the acceptance of the goods does not thus operate, the buyer, as an alternative remedy to those already referred to, may recoup from the contract price the difference in value of the goods received and those promised.75 The seller is bound, moreover, to deliver

92 Neb. 402, 138 N. W. 575; Boothby v. Plaisted, 51 N. H. 436, 12 Am. Rep. 140; Washington Brick Co. v. Sinnott, 92 N. Y. S. 504; Hume v. Sherman Cotton Co., 27 Tex. Civ. App. 366, 65 S. W. 390.

73 This has been observed by the learned editors of the fifth English edition of Benjamin, Sale, who make the following comment on page 642, note 3: "Whether, however, the word 'condition' should not, in the case of a contract for the sale of specific goods, be interpreted as 'stipulation,' having regard to the provisions of 8. 11 (1) (c), is doubtful. If the Legislature intended to declare the common law, as laid down in Street v. Blay, [1831] 2 B. & Ad. 456, under which the buyer of specific goods, in whom the property is vested, cannot treat

the breach of a stipulation as to quality as the breach of a condition, it seems doubtful whether this intention has been carried out," citing id. p. 567, and as to sales of specific goods according to sample per Cur. in Dawson v. Collis, [1851] 10 C. B. 523; and per Cur. in Heyworth v. Hutchinson, [1867] L. R. 2 Q B. 447. The English decisions prior to the Sale of Goods Act had, as already observed, gone very far in holding that a difference in the bulk of specified goods sold by sample is such a difference of species as to prevent a transfer of title. Azemar v. Casella, L. R. 2 C. P. 431. See supra, n. 66.

74 See supra, §§ 700 et seq.

75 McGee v. Billingsley, 3 Ala. 679; Graff v. Foster, 67 Mo. 512; Washington Brick Co. v. Sinnott, 92 N. Y.

goods not simply conforming to the sample, but also conforming to any verbal description given of the goods.76

§ 1003. The sample as a representation as to the bulk.

In many cases it has been held that the mere fact that a sample is exhibited does not make the transaction a sale by sample. It has even been said that there must be an intention to contract that the bulk shall be equal to the sample or the seller is not liable as warranting that fact. The question here, however, is precisely the same as that considered in connection with express warranties." If, as was urged, an affirmation in regard to goods to induce the buyer to enter into a bargain is an express warranty irrespective of an intention to contract, no difference of principle can be found if a sample is used as a means of making such a representation instead of words. As might be expected, the authorities are somewhat divided.78 The actual decisions, however, are not so conflicting as some of the language used might lead one to suppose. By regarding a representation as evidence of a promise by the seller, courts which hold that it is necessary

S. 504; Dayton v. Hooglund, 39 Ohio St. 671; Brantley v. Thomas, 22 Tex. 270, 73 Am. Dec. 264; Hume v. Sherman Cotton Co., 27 Tex. Civ. App. 366, 65 S. W. 390.

76 See infra, § 1007. 77 See supra, § 971.

78 In the following cases the view was expressed that the parties must have manifested an intention to contract that the bulk should be like the sample: Browning v. McNear, 145 Cal. 272, 78 Pac. 722; Imperial Portrait Co. v. Bryan, 111 Ga. 99, 36 S. E. 291; Gunther v. Atwell, 19 Md. 157; Day v. Raguet, 14 Minn. 273; Wood v. Michaud, 63 Minn. 478, 65 N. W. 963; Hargous v. Stone, 5 N. Y. 73; Beirne v. Dord, 5 N. Y. 95, 55 Am. Dec. 321; Burrowes Co. v. Rapid Safety Filter Co., 97 N. Y. S. 1048; Proctor v. Spratley, 78 Va. 254; American Canning Co. v. Flat

Top Grocery Co., 68 W. Va. 698, 70 S. E. 756, 758. On the other hand, excellent authorities uphold the view, which it is submitted is the better one, that an exhibition of a sample under circumstances which make it tantamount to a representation that the bulk of the goods is, or will be, equal to the sample, amounts to a warranty if a bargain is induced thereby. Bradford v. Manly, 13 Mass. 139, 7 Am. Dec. 122; Atwater v. Clancy, 107 Mass. 369; Gould v. Stein, 149 Mass. 570, 22 N. E. 47, 5 L. R. A. 213, 14 Am. St. Rep. 455; Bernstein v. Loomis, 87 N. Y. S. 134; Abel v. Murphy, 43 N. Y. Misc. Rep. 648, 88 N. Y. S. 256. See also Russell v. Nicolopule, 8 C. B. (N. S.) 362; Weston v. Barnicoat, 175 Mass. 454, 56 N. E. 619, 49 L. R. A. 612; Dayton v. Hooglund, 39 Ohio St. 671.

that the seller should contract that the goods are like the sample are enabled to cover most cases where the seller exhibits a sample and represents that the bulk corresponds with the sample.79

§ 1004. The sample not always a representation as to the bulk. Though a representation express or implied on the part of the seller that the bulk is, or will be, equal to the sample, should amount to a warranty regardless of whether this representation formed part of the contract or merely induced it, it must not be assumed that in every case where a sample