is shown a warranty of this sort arises. Thus the seller may take a sample of the goods, being himself ignorant as to their quality, and may represent to the buyer merely that the sample which he exhibited was fairly taken from the bulk. If this representation is true and the seller neither represents nor promises that the goods shall be equal to the sample, he would not be liable if the bulk proved, in parts, not to be equal to the sample. Whether a seller who exhibits a sample does represent that the bulk is like the sample, or merely that the sample was honestly and properly taken, and that the buyer must take his own risk as to the bulk, is a question of fact in each case.81 So a sample may be shown which is confessedly not identical with the goods which form the subject of the bargain, merely to give an idea of the general kind of goods.82 Again, though the seller may exhibit a 80 See Gardiner v. Gray, 4 Campb. 144. Samples of waste silk were exhibited. Lord Ellenborough said: "The sample was not produced as a warranty that the bulk corresponded with it, but to enable the purchaser to form a reasonable judgment of the commodity." That is, the seller submitting a fairly taken sample as such to the buyer's inspection and judgment does not necessarily represent anything more than that the sample was honestly and properly taken. See also Gunther v. Atwell, 19 Md. 157; Androvette v. Parks, 207 Mass. 86, 92 N. E. 1006; Hargous v. Stone, 5 N. Y. 73; American Canning Co. v. Flat Top Grocery Co., 68 W. Va. 698, 70 S. E. 756, 758; Borthwick v. Young, 12 Ont. App. 671. 81 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; Columbia River Packers' Assoc. v. Springfield Grocer Co., 129 Mo. App. 132, 108 S. W. 113; Beirne v. Dord, 5 N. Y. 95, 55 Am. Dec. 321. 82 In Wood v. Michaud, 63 Minn. 478, 65 N. W. 963, a contract was made for the sale of canned corn. A See sample, he may expressly require the buyer to examine the goods and make the purchase on the basis of such inspection.83 Sometimes the buyer himself takes the sample. It is evident in such a case that unless the seller makes some express representations he cannot be held to warrant that the goods are, or shall be, like the sample.84 Sometimes the sample is taken by an official, as both parties know.85 As the warranty in a sale by sample, like other warranties, requires for its existence reliance by the buyer upon the statement or representation of the seller, if the buyer refuses to rely upon the sample and makes an examination of the bulk for himself, upon which he places his sole reliance, the idea of warranty is excluded. It is not necessary, however, that the buyer should place his sole reliance upon the sample; it is enough if the representation made by the sample is part of the inducement which leads him to make the bargain. § 1005. Buyer's right of inspection. It is a general principle of the law of sales that unless the terms of the contract necessarily imply the contrary, the buyer shall not be obliged to pay the price unless and until he has 67 N. Y. S. 350, 170 N. Y. 162, 612, 63 N. E. 57. 83 Barnard v. Kellogg, 10 Wall. 383, 19 L. Ed. 987, illustrates this. The buyer requested the seller to furnish samples of a certain wool and the seller did so. The buyer thereupon offered to take the wool if equal to the samples furnished and the seller replied accepting, provided Kellogg & Co. examined the wool. The buyer did so and bought it. It proved to be falsely packed, the interior of the bales being made up of inferior wool and foreign matter. The seller was ignorant of the defect. It was held the seller was not liable, the court saying: "That the wool was not sold by sample clearly appears, and it is equally clear that both sides understood that the buyer if he bought was to be his own judge of the quality of the article he purchased." See also Salisbury v. Stainer, 19 Wend. 159, 32 Am. Dec. 437; Hargous v. Stone, 5 N. Y. 73. 84 The seller may, however, adopt the action of the buyer in taking the sample and vitually represent the sample to represent the bulk. Abel v. Murphy, 43 N. Y. Misc. Rep. 648, 88 N. Y. S. 256. In Ames v. Jones, 77 N. Y. 614, though the buyer bought on the faith of the sample, the seller did not even know that it had been taken. Of course no warranty could be found. 85 In the leading case of Gunther v. Atwell, 19 Md. 157, the court's remarks on this matter are instructive (pp. 169, 170). 86 See Barnard v. Kellogg, 10 Wall. 383, 19 L. Ed. 987, stated supra, n. 83; Salisbury v. Stainer, 19 Wend. 159, 32 Am. Dec. 437. had an opportunity to inspect the goods. The effect of the provision in regard to inspection in section 16 of the Sales Act 87 is that the mere fact that a contract to sell or a sale is made by sample does not exclude the operation of the general rule, and that, therefore, the buyer need not take the goods or pay the price until he has had a chance to see them, and the seller is bound to give him a chance. 88 § 1006. Merchantability. As a general rule all the buyer is entitled to, in case of a sale or contract to sell by sample, is that the goods shall be like the sample. He has no right to have the goods merchantable if the sample is not. 89 The reason upon which this rule is based is identical with that which denies an implied warranty generally to a buyer who has inspected the goods which he buys.90 As should be the case, however, where the buyer inspects or has opportunity to inspect the bulk, but the defect in the goods is of such a character that inspection will not reveal it, so in the case of a sale by sample, if the sample is subject to a latent defect, and the buyer reasonably relies on the seller's skill or judgment, the buyer is entitled not simply to goods like the sample, but to goods like those which the sample seems to represent, that is, merchantable goods of that kind and character. It was thought in drawing the 87 See supra, § 959. 874 Supra, § 1000. 88 The provision of the English act from which the American act is copied is based on Lorymer v. Smith, 1 B. & C. 1. The defendant, having bought by sample two lots of wheat, asked to see the bulk; permission was given him to inspect one lot, but the seller refused to show the other, whereupon the buyer repudiated the bargain. Some days later the seller offered to give the buyer an opportunity to inspect all the wheat and make delivery, and on refusal of the latter brought suit. The buyer was held justified in refusing to take the wheat. See also Heilbutt v. Hickson, L. R. 7 C. P. 438, 456; Meyer v. 89 Mody v. Gregson, L. R. 4 Ex. 49, Sales Act that this wider obligation should be restricted to the case of dealers in goods of the kind in question, but as to dealers of that character, the provision is clearly sound."1 § 1007. Implied warranty in sale by description. The Uniform Sales Act provides 92 "Where there is a contract to sell or a sale of goods by description, there is an mplied warranty that the goods shall correspond with the description and if the contract or sale be by sample, as well as by description, it is not sufficient that the bulk of the goods corresponds with the sample if the goods do not also correspond with the description.93" This section enacts the rule of the common law.94 91 Mody v. Gregson, L. R. 4 Ex. 49. This was a contract to manufacture gray shirting like a sample. The goods were made and accepted as according to sample, but they contained china clay put in for the purpose of increasing the weight of the goods. The court held the seller liable irrespective of whether the sample did or did not contain the same foreign substance. So in Heilbutt v. Hickson, L. R. 7 C. P. 438, the plaintiff agreed to buy 30,000 pairs of shoes as per sample, to be inspected and quality approved before shipment. The plaintiffs appointed an inspector and many shoes were rejected and many approved. Some of the shoes were afterward found to contain paper in the soles which could not be detected by inspection without opening the sole. It was found that the sample shoe also contained paper. Nevertheless, the court held the seller liable for damages because the defect in the sample was a hidden one. See also Drummond v. Van Ingen, 12 A. C. 284; Leggett v. Young, 29 N. B. 675; Bierman v. City Mills Co., 151 N. Y. 482, 45 N. E. 856, 37 L. R. A. 799, 56 Am. St. Rep. 636. 92 Sec. 14. 93 Decisions under this section are Stuart v. Burlington County Farmers' Exch., 90 N. J. L. 584, 101 Atl. 265; Mastin v. Boland, 178 N. Y. App. D. 421, 165 N. Y. S. 468. The section is identical in meaning with section 13 of the English act and identical in language except for the use of the words "contract to sell" and "sale" instead of the English words "contract for the sale" and "sale:" and the substitution of the word " warranty" for "condition," which is used in the English act as including both condition proper and promise. The meaning of the word "condition" is restricted in the American act to condition proper, see supra, §§ 665, 1000. As breach of warranty justifies rejection of the goods, and also an action for damages under this Act, the buyer's rights are at least as extensive as under the English law. 94 Lissberger v. Kellogg, 78 N. J. L. 85, 73 Atl. 67. A good illustration of the seller's duty to comply with the description as well as to furnish goods like the sample may be found in the case of Drummond v. Van Ingen, 12 A. C. 284. The defendants ordered of the plaintiffs goods described in the contract as "mixt worsted coatings" which were to be in quality and weight equal to certain It is customary to call the warranty in a sale by description an implied warranty, and for that reason this nomenclature has been preserved in this section of the Sales Act. The warranty might more properly, however, be called express, since it is based on the language of the parties.95 § 1008. What is meant by sale by description. The term "contract to sell or sale by description" is common, but there has been little attempt at exact definition of its meaning. It seems, however, the term should be confined to cases where the identification of the goods which are the subject-matter of the bargain depends upon the description. Such a case may occur either in a contract to sell or a sale. Where there is a contract to sell goods by describing them as of a certain kind, the goods require for their identification a determination of the question whether they are in fact of that kind. So, if parties agree to make a present sale of all the goods of a certain kind in the seller's warehouse, title may pass at once to such goods, their identification depending upon the description. Cases of this sort, however, are not the only ones where description is important. The seller may contract to sell a specified horse, adding a description of him, or he may agree to make an immediate sale of him. In these cases the description is not necessary to fix the identity of the property sold; its purpose is rather to induce the buyer to purchase goods otherwise identified. In a recent English case 96 the court gave a wider meaning to the term "sale by numbered samples. The goods which were furnished, in point of fact, were exactly like the samples. Both the samples and the bulk of the goods were so loosely woven that the cloth could not be properly used for coating. It was held the seller was liable as on breach of warranty for this failure of the goods. See also Ungerer v. St. Louis &c. Fish Co., 155 Mo. App. 95, 134 S. W. 56. The English case may be compared with Meyer Drug Co. v. Puckett, 139 Ala. 331, 35 So. 1019. There the plaintiff submitted samples of medicinal roots to the defendant and asked their value; the defendant named the samples "Pink root," and offered to buy a quantity at a specified price Roots were sent like the sample but the name given by the purchaser was erroneous. The seller, however, did not know this and it was held that there was no warranty that the root was pink root. 95 See supra, § 970. 96 Varley v. Whipp, [1900] 1 Q. B. 513; followed in Boys v. Rice, 27 New Zealand L. R. 1038. See also Wallis v. Russell, [1902] 2 Ir. 585, C. A. |