
    The New York Hydraulic Press Brick Co., Respondent, v. William Gunn et al., Appellants.
    (Supreme Court, Appellate Term,
    March, 1904.)
    Sale by sample, a question of fact — Express warranty — When it survives acceptance — In case of a breach the buyer may retain the goods and offset damages sustained by the breach — Measure of damages.
    Whether a sale was one by sample or by description is a question of fact for the jury on the evidence in each case, where the facts permit different inferences to be drawn, and for the jury to find a sale by sample the evidence must satisfactorily show that the parties contracted solely in reference to the sample exhibited and mutually understood that they were dealing with it as an agreement or understanding that the hulk of the commodity corresponded with it.
    Upon such a sale there is an express continuing warranty that all the goods are of the nature and quality of the sample, and in the case of a manufacturer only the warranty may cover latent defects of manufacture.
    If after inspection and acceptance by the purchaser, the quality of the goods proves to be below that of the sample he may retain the goods and counterclaim, in the seller’s action for the price, the damages suffered by the breach of warranty.
    While the measure of damages upon such sales is ordinarily the difference between the actual value of the article as delivered and' as it should have been, additional damages are recoverable where they are such as may fairly be supposed to have entered into the contemplation of the parties when they made the contract, where they are such as might be expected to follow its violation, and where they are capable of being definitely ascertained.
    Appeal by the defendants from a judgment of the Municipal Court of the city of New York, eleventh district, borough of Manhattan, in favor of the plaintiff, entered upon a verdict directed by the court.
    Kurzman & Erankenheimer (Nathan Ottinger, of counsel), for appellants.
    Phillips & Avery (Frank M. Avery and Henry W. Eaton, of counsel), for respondent.
   Giegerich, J.

The action was brought to recover $500, a balance claimed to be due for 53,000 bricks sold and delivered by the plaintiff to the defendants, $800 having been paid on account of the entire purchase price of $1,330; the plaintiff waiving the excess above $500, so that the court below could have jurisdiction. The pleadings were in writing. The answer denied the contract as alleged in the complaint and set up a counterclaim for breach of warranty, claiming that the sale was by sample and that the bricks delivered by the plaintiff did not correspond to the sample. Upon the trial the defendants gave testimony in support of the counterclaim, while the plaintiff’s testimony was to the effect that the bricks were according to sample when delivered. The defendants admitted that they had used the bricks upon the front of a court erected by them in One Hundred and Eleventh street, between Amsterdam avenue and Broadway, borough of Manhattan, Hew York city, but claimed the right to do so under the warranty upon the sale by sample, although the brick did not, upon inspection, correspond with the sample. The trial justice, however, was of the opinion that there was no warranty that survived acceptance and directed a verdict in favor of the plaintiff for the amount claimed, and the defendants excepted. The defendants specifically asked to go to the jury upon each and every question involved in the case, stating each in full, which requests were refused and they noted exceptions. The defendants have appealed to this court and thus bring up for review the correctness of the rulings so made.

The first question presented for determination is whether or not there was a sale by sample. Ordinarily, even though there be no conflict in the evidence, but where the facts proved permit different inferences, it is for the jury to determine upon all the evidence whether the parties intended a sale by sample or a sale by description. Henry & Co. v. Talcott, 175 N. Y. 385, 393. The defendants adduced testimony to the effect that the bricks purchased by them should correspond with a certain brick selected by them; that such brick was a specimen of a quantity of bricks which were then in the plaintiff’s factory in Rochester, N. Y.; that the defendants selected this specimen from a number of samples or specimens in the selling agents’ office in the city of Hew York, and that, when ordering the bricks in suit, the defendants stated to the plaintiff’s selling agents that (referring to the sample) was the kind of brick we wanted ” and that the color of the same was to be “ just exactly like ” the sample. Furthermore, that, when such order was given, the plaintiff’s selling agents were informed by the defendants that they were in a hurry for the bricks and that they had previously ordered a different kind of brick which the building department would not permit .them to use. The plaintiff’s evidence was that the defendants inquired of its selling agents what kind of light brick they could furnish for the court of 'the building and that the agents informed them they had colored brick of light color,” and that they “ could offer them that hrick for the work .at that time,” and “ showed them the sample ” and they (the defendants) “ considered it for a time and they said that they would take it and to ship them as quickly as it (the plaintiff) could.” Also that the defendants at the time saw the brick produced on the trial and introduced in1 evidence, which was taken out of a panel the selling agents had in their office, put up there for display and in plain view of any one entering the office. There was evidence also that the defendants’ attention was called “to this particular panel” and that they saw this brick or one similar in color, size and shape. The plaintiff’s counsel contend that no sample from the bulk of the bricks to be delivered was exhibited or delivered to the defendants and that hence there was not strictly a sale by sample.

The record, however, as already seen, discloses sufficient evidence to have warranted the jury in finding that the brick so selected as a sample was a specimen of a quantity of bricks then in plaintiff’s factory, and forming part of the bulk so purchased by the defendants.

The rule applicable to sales by sample is well expressed in Beirne v. Dord, 5 N. Y. 95, 99, in these words: “But the mere circumstance 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 an implied 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. 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. Whether a sale be a sale by sample or not, is a question of fact for the jury to find from the evidence in each case; and to authorize a jury to find such a contract, the evidence must satisfactorily show that the parties contracted solely in reference to the sample exhibited. That they mutually understood that they were dealing with the sample as an agreement or understanding that the hulk of the commodity corresponded with it; or, in other words, the evidence must be such' as to authorize the jury, under all the circumstances of the case, to find that the sale was intended by the parties as a sale by sample, Waring v. Mason, (18 Wend. 425) ; Long on Sales, Rand. Ed., 192; Story on Contracts, Sec. 540, Gardiner v. Gray, (4 Camp. 144); Meyer v. Everth, (Id., 22).” The foregoing rule was adopted and applied in the recent case of Henry & Co. v. Talcott, 175 N. Y. 385, 394, and in which the court, adverting to the subject of sales by sample, said pp. 390, 391: “The chief reason for exempting sales by sample from the cardinal rule of caveat emptor is that the buyer has no chance to protect himself by an examination of the commodity sold. When the goods are in the presence of the parties at the time of the sale and an adequate examination can be made, even if it is inconvenient or difficult, according to the weight of authority the sale is not to be regarded as made by sample in the absence of an express agreement to that effect. * * * We thus reach the foundation upon which sales by sample rest, for it is the absence of an adequate opportunity for inspection that excepts such sales from the rule of caveat emptor. As was said by the Supreme Court of the United States: 1 One of the main reasons why the rule does not apply in the case of a sale by sample, is because there is no opportunity for a personal examination of the bulk of the commodity which the sample is shown to represent.’ (Barnard v. Kellogg, 10 Wall. 383, 388.) £ Ordinarily, if the buyer had no opportunity to inspect the goods and a sample is exhibited at the sale and offered him for examination, the courts would presume that it was a sale by sample * * (Tiedeman on Sales, Sec. 188.) This presumption is not conclusive, but may be rebutted by other facts; as, for example, when the seller refuses to sell by the sample.’ (Id.)”

A verdict having been1 directed in plaintiff’s favor, the defendants are .entitled upon this appeal to have the benefit of the most favorable inferences deducible from the evidence. Viewing, therefore, the proof in the most favorable light for the defendants and applying to it the rule above quoted, there was sufficient evidence in the case to have warranted the jury in finding that there was a sale by sample. Such being the case, the question arises whether, under the circumstances, the counterclaim could be allowed. The plaintiff contends (1) that there was no express or collateral agreement of warranty which survived the acceptance of the bricks after inspection, and (2) that the defendants after having examined the bricks accepted and used them in the building and that, therefore, they are estopped from now claiming that the same were not according to contract. The defendants, on the other hand, claim that the warranty was one which survived acceptance, and that, therefore, they were entitled to deduct from the. contract price the damage which they have suffered by reason of the breach of warranty.

In Henry & Co. v. Talcott, supra, the court, at pp. 389, 390, said: “Upon a sale by sample there is an express warranty that the goods are equal in quality to the sample furnished. ‘ It amounts to an undertaking on the part of the seller with the purchaser that all the goods are similar both in nature and quality to those exhibited.’ (Beirne v. Dord, 5 N. Y. 95, 98.) It is sometimes said that the warranty is implied, although the effect of an express warranty is given to -it, but more accurately it is express, the affirmation being made by the sample itself silently asserting the qualities of the bulk it represents. * * * In the absence of fraud, the warranty does not cover latent defects, unless the seller is the manufacturer, when it may extend to latent defects growing out of the process of manufacture. - If upon delivery the goods fall below the quality of the sample the buyer may either reject them or may accept and sue for damages upon the warranty. (Zabriskie v. Central Vt. R. R. Co., 131 N. Y. 517; Kent v. Friedman, 101 N. Y. 616; Day v. Pool, 52 N. Y. 416.) The rule is the same whether the goods are in' existence at the time of the contract of sale or are to be manufactured, although it is sometimes said that such a sale is not technically one by sample. (Brigg v. Hilton, 99 N. Y. 518; Gurney v. Atlantic & G. W. Ry. Co., 58 N. Y. 358.) * * * If the goods, when delivered, do not equal the sample, the buyer need not return them in order to recover for the breach of warranty, although an offer to return is necessary if he wishes to rescind the sale and sue for the amount paid in advance of delivery.” Under this rule, the defendants were not required to return the bricks, when they discovered after inspection that they did not conform to the sample, and hence upon establishing a breach of warranty to the satisfaction of the jury they would be entitled to counterclaim for damages due to such breach. The evidence adduced by the defendants was amply sufficient to base a finding that there was a breach of warranty; it, among other things, appearing, that, when delivered, the bricks, except those used in the first story, were nearly all chipped and differed from one another in color, presenting, when put in the wall, a mottled appearance. On the other hand the plaintiff’s evidence tended to show that, when the bricks were delivered, they corresponded in color to the sample, but that, owing to their having been allowed during a strike to remain uncovered in the street, they became discolored by dirt and rain. The defendants’ witnesses denied this and testified that during the strike the bricks had been properly covered in all cases, and were protected from the rain. The defendants further gave evidence that, although in the first and second stories the bricks were put up immediately after they were delivered and before the strike began, the first story, though fairly uniform in color, did not correspond with the sample, while the second story differed very much from the first in1 color. The plaintiff claims furthermore that its contention as to the bricks being according to sample when delivered, is supported by the receipts signed by the defendants or their representatives that the brick had been delivered in good order. A receipt, however, is always open to explanation. An examination of the receipts so given discloses that the words “ in good order ” are printed in very small type and the defendants’ witnesses testified that the same were given only to indicate the number of brides received, and to indicate nothing as to their quality. Moreover, the defendants testified that during deliveries they frequently made complaints to the plaintiff’s representatives as to the kind of bricks they were receiving. There was thus a conflict of testimony as to whether or not there was a breach of warranty, which it was for the jury and not the trial justice to decide. Therefore, it was error, under the circumstances, to refuse to submit that question to the jury.

The defendants produced evidence tending to show the value of the bricks in their defective condition, but they were not allowed to show the value of the building with the wall in the court as it is now and with the wall as it would have been if the bricks had been delivered according to sample. We think the exclusion of such evidence was error. While ordinarily the measure of damage in cases of sales by-sample is the difference between the actual value of the article as delivered and as it should have been, additional damages may be recovered where they are such as may be fairly supposed to have entered into the contemplation of the parties when they made the contract, where they are such as might naturally be expected to follow its violation and where they are capable of being definitely ascertained. Jones v. Mayer, 16 Misc. Rep. 586; 15 Am. & Encyc. of Law (2d ed.), 1259. It appeared in evidence that the plaintiff was the manufacturer of the bricks in suit; that its selling agents knew that the same were intended for the front court of the defendants’ building and were urgently needed because the defendants had previously ordered a different kind of brick which the building department would not allow them to use; also that some bricks change color more quickly than others when put into a wall; that the bricks so delivered to the defendants were subject to such changes, and although they knew the character of the bricks as to color, they did not communicate that fact to the defendants at the time of the sale; that the sample in question was selected because it represented the only light brick which the plaintiff had ready for immediate use and that, although color was the most important particular inquired into at the time of the selection of the sample, the bricks, when put into the wall, greatly differed from one another in color, thus, according to one of the witnesses, making the wall look, “like the American flag.” It was further testified that, to cure the trouble, it would be necessary to paint the wall at considerable expense. These additional elements clearly bring the case within the exceptional category where more than the mere difference in the value of goods can be recovered upon a sale by sample.

It results from these views that the judgment should be reversed and a new trial ordered, with costs to the appellants to abide the event.

Freedman, P. J., and McCall, J., concur.

Judgment reversed and new trial ordered, with costs to appellants to abide event.  