
    Beirne et al. v. Dord.
    
      Sale by sample. — Oustom.
    To raise an implied warranty, from the exhibition of a sample, it must bo shown, that the parties mutually understood, that they were dealing with the sample, upon an agreement on the part of the seller, that the bulk of the commodity corresponded with it.
    Evidence of a particular custom, not sufficient to establish a general usage of trade, is not admissible, to prove that the exhibition of a sample was intended to be a warranty of quality.
    Beirne v. Dord, 2 Sandf. 89, reversed.
    Appeal from the general term of the Superior Court of the city of New York, where a motion for a new trial had been denied, and judgment entered upon a verdict in favor of the plaintiffs.
    (Reported below, 2 Sandf. 89.)
    This was an action of assuvipsit for the breach of an alleged warranty of quality, on a sale of twenty-seven bales of French blankets, by the defendant to the plaintiffs, on the 28th September 1844. The goods were sold on a credit of sue months, for the price of $4185, for which the plaintiffs gave their negotiable promissory note. The bill of parcels was silent on the subject of quality.
    *At thetime purchase, the defendant exhibited to the buyers samples of the blankets, which were sound, but the purchasers did not examine the goods in the bales, though they could have done so. They were shipped to New Orleans, and, on their arrival, were found to be badly moth-eaten; of which the defendant was duly notified.
    On the trial, the plaintiff was allowed to prove, under objection, that it was customary for dealers to sell blankets by the exhibition of a sample; that it was not usual to open and examine the bales; but, if found defective, to make an allowance to the purchaser, or to take back the goods; to which an exception was taken. At the close of the evidence, the defendant’s counsel requested *the court to instruct the jury, “that the plaintiffs had not furnished any sufficient proof of any custom or usage which can or ought to affect the defendant, or which the jury ought to take into consideration in the case.”
    In answer to this point, the learned judge (SaNDEOKD, J.) said: “ This testimony does not establish any general or uniform usage, such as would prove a contract, or warrant you, from usage merely, to find that the parties contracted with the understanding that this was a sale by sample. The evidence was not admitted, for the purpose of proving a general usage of trade, forming a part of the contract, or, of itself, establishing a sale by sample; but it was received as an item of testimony, tending to show, in connection with other evidence, that a personal examination of the bulk of the goods sold was never contemplated by either party, and that both parties intended to contract upon the sample only. And to make the testimony effective, even to this extent, you must be satisfied, that there was a general usage, in this trade, not merely to sell by exhibiting a specimen, but to sell with a mutual understanding that the bulk should be like the specimen in all respects.” To this charge the defendant excepted.
    The jury found a verdict for the plaintiffs for $1131.38, and a motion for a new trial having been denied by the general term, and judgment perfected for the plaintiffs upon the verdict, the defendant took this appeal.
    Chitting, for the appellant.
    
      Dillon, for the respondents.
   Jewett, J.

The first two counts of the declaration allege 'a purchase by the plaintiffs of the - defendant of twenty-seven bales of blankets, by sample, and a warranty that all the blankets in the bales were of like goodness and qualit} with the sample exhibited; averring a breach of the warranty to *consist in this, that the blankets contained in seventeen of the bales, were not of like goodness and quality with the sample, but were moth-eaten and damaged, whereby such blankets became of no value to the plaintiffs. The third count alleges a purchase of the like number of bales of blankets, on a warranty that all the blankets in the bales were good, merchantable blankets, free from damage; averring that the blankets contained in seventeen of the bales were bad, damaged and unmerchantable. But, in considering this case, the third count may be laid out of view, as it was not, at the trial, pretended, that there was any evidence of an express warranty to sustain it.

As a general rule, it is well established, as well by our law as by the common law, that where there is neither fraud nor express warranty, on an executed contract for the sale of a chattel, the buyer takes the risk of its-quality and condition. No warranty of any kind (unless it be in respect to the title of the seller) can be implied, from the fact that a sound price was paid. The maxim is, caveat emptor, and not caveat venditor. (2 Kent’s Com. 479-480; Seixas v. Wood, 2 Caines 48; Snell v. Moses, 1 Johns. 96; Perry v. Aaron, Id. 129; Defreeze v. Trumper, Id. 274; Holden v. Dakin, 4 Johns. 421; Davis v. Meeker, 5 Id. 354; Heermance v. Vernoy, 6 Id. 5; Swett v. Colgate, 20 Id. 196; Welsh v. Carter, 1 Wend. 185; Moses v. Mead, 1 Denio 378; Oneida Manufacturing Co. v. Lawrence, 4 Cow. 440.)

There is, however, an exception to this rule of the common law, as well established, in our law, and in the English law, as the rule itself, which allows a warranty to be implied, on a sale of goods by sample, that the article is, in bulk, of the same kind, and equal in quality with the sample exhibited, in reference to which the parties contracted. When a contract for the sale of goods is made by sample, 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; and if they be not, the purchaser may either rescind the contract, by returning the goods in a proper time, or keep them and recover damages for the breach of such warranty. (2 Kent’s Com. 481; Story on Contracts, § 540; Waring v. Mason, 18 Wend. 425; Wright v. Hart, Id. 449; Moses v. Mead, 1 Denio 378; Sands v. Taylor, 5 Johns. 395; Andrews v. Kneeland, 6 Cow. 354; Beebee v. Robert, 12 Wend. 413; Bradford v. Manly, 13 Mass. 139; Boorman v. Johnson, 12 Wend. 566; Parker v. Palmer, 4 B. & Ald. 387; Germain v. Burton, 3 Starkie 32, note a.)

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 tbe bulk of the commodity corresponded with it: or, in other words, the evidence must be such as to authorize the jury, under all the circumstances cf 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, § 540; Gardiner v. Gray, 4 Camp. 144; Meyer v. Everth, Id. 22.)

*That a personal examination of the bulk of the goods by the purchaser, 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. The want of an opportunity, from whatever cause, for such an examination, is doubtless a strong fact in reference to the question of the character of the sale, whether it was or not made by sample. But it is, nevertheless, true, that a contract of sale by sample may be made, whether such examination be practicable or not, if the parties so agree. Where the acts and declarations of the parties in making the contract for the sale of goods 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 correct conclusion in respect to the true character of the contract.

It was conceded on the trial, as well as on the argument here, that there was no express warranty of the quality or condition of the blankets, by the -terms of the contract. The ground for a recovery, as claimed, was, that the sale was by sample, and that the blankets not being equal in quality and goodness with the sample, in reference to which the contract was made, there was a breach of the implied warranty attached to such a sale of goods.

On the trial, to establish a sale by sample, the plaintiff was allowed, though the evidence was objected to, to prove that there was a general usage in the market in New York, on the sale of French blankets in bales, to buy and sell by samples; and if, upon examination subsequently made, the article was found to be defective in quality, it was the usage for the seller to make allowance therefor. Several witnesses who had dealt in the article at that place testified, that such usage or custom, to some extent, prevailed there.

When the testimony was closed, the defendant’s counsel insisted, and requested the judge to charge the jury, that the plaintiff had not furnished any sufficient proof of such custom *or usage, which could or ought to affect the defendant, or which the jury ought to take into consideration. The judge, however, in respect to that, charged, that the evidence did not establish any general or uniform usage, such as would prove a contract, or warrant the jury, from the usage merely, to find that the parties contracted with the understanding that the sale was by sample; and remarked to the jury, that the evidence was not admitted for the purpose of proving a general usage of trade, forming a part of the contract, or, of itself, establishing a sale by sample; but that it was received as an item of testimony, tending to show, in connection with other evidence, that a personal examination of the bulk of the goods sold was never contemplated by either party, and that both parties intended to contract upon the sample only; that the evidence of usage would be effective to the extent of showing that both parties intended to contract upon the sample only, if they were satisfied, both, that there was a general usage in that trade to sell by exhibiting a specimen, and that on such sale there was a mutual understanding that the bulk should be like the specimen in all respects.

I think, that the evidence of the existence of the custom or usage mentioned, for the object specified, was improperly admitted, and the charge of the judge in respect to the effect which the jury might give to that evidence erroneous.

Although the judge, in the course of his charge, told the jury, that the evidence did not establish any general and uniform usage, such as would prove a contract, or warrant them, from the usage so proved merely, to find that the parties contracted with the understanding that tho sale in question was by sample; yet he finally charged, substantially, that the jury, if they were satisfied that there was a general usage in the trade mentioned, to sell by sample, and also to sell with a mutual understanding that the bulk should be like the sample, they might give such evidence the effect, to establish the fact, that the parties in this case intended to contract upon the sample. I agree with the court in Thompson v. * Ashton (14 Johns. 317), that no custom in the sale of any particular description of goods can be

admitted to control the general rules of law; that such a principle would he extremely pernicious in its consequences, and render vague and uncertain all the rules of law on the sale of chattels. See also Yates v. Pym (6 Taunt. 446); Story on Contracts, § 12; Schooner Reeside (2 Sumn. 567); Mutual Safety Ins. Co. v. Hone (2 N. Y. 235); Cow. and Hill, notes 1411-2; Greenleaf Evid., § 251, 252.

Every contract is founded upon the mutual agreement of the parties, express or implied. Both species of contract are, however, equally founded upon the actual agreement of the parties, and the only distinction between them is, in regard to the mode of proof. In an implied contract, the law only supplies that which, although not stated, must be presumed to have been the agreement intended by the parties. As, where a party avails himself of the benefit of services done for him, although without his positive authority or request, the law supplies the formal words of contract, and presumes him to have promised an adequate compensation. So, where a person buys an article, without stipulating for the price, he is presumed to have undertaken to pay its market value; or, where he allows another to do any work, or make any article for him, he impliedly binds himself to pay what it is worth ; or, where he holds the money of another, as trustee or bailee, the law supposes a promise to restore it. The circumstances, however, must be such as unequivocally to imply a contract between the parties.

So, where a person sells goods by sample, he is presumed to warrant that the bulk is of the same kind, and equal in quality with the sample, in reference to which the contract is made. But to enforce such a contract, when denied to have been made, it must be established by evidence of the acts and declarations of the parties, tending to prove a contract of sale by sample, as in any other case of alleged contract. It cannot be established, by proof that it was a general custom *or usage of persons dealing in the article, thus to contract. In the case under consideration, it, in effect, was submitted to the jury that, upon evidence, conceded to come short even of establishing a general usage in the particular trade, they might find that both parties intended to contract upon the sample only; if they were satisfied, that there was the general usage alluded to. I think, the jury should have been charged, that the evidence given of usage ought not to affect the defendant, as any proof of the contract alleged to have been made between the parties, or as showing that the parties intended so to contract.

A question was made on the argument, that parol evidence was improperly admitted, to prove that the blankets were sold by sample; that as there were sale-notes of the contract given, they were aloné the evidence of the contract, and the admission of parol evidence that the sale was by sample, was a violation of the rule which excludes such evidence to contradict, alter or vary a contract reduced to writing. It is enough, in respect to this question to say, that it was not made by the bill of exceptions. The evidence was not objected to, when admitted, nor did the defendant move to strike out that evidence, after the sale-notes were given in evidence, nor was there any exception taken to the refusal or neglect of the judge to charge in respect to it as requested.

The judgment must be reversed, and a new trial granted, with costs to abide the event.

GardiNER., J.

A sale by sample, in its own nature, is, at most, an affirmation by the vendor, that the specimen exhibited, is a fair sample of the bulk of the commodity. A sale by sample, technically so called, is such a sale, by the exhibition of a specimen, as amounts to an express warranty that the goods are the same, generally and specifically, as the sample exhibited. (13 Mass. 130; 12 Wend. 413.) Every sale by the exhibition of *a specimen of the article sold, is not, therefore, necessarily,' a sale by sample, in the technical sense, any more than an affirmation is necessarily a warranty. It is rather evidence tending to prove a warranty, and from which, in connection with the attending circumstances, a jury may infer, that the vendor did not merely intend to express an opinion, or his belief, but to engage that the fact was as represented, and that the vendee purchased upon the faith of that undertaking. (Oneida Manufacturing Co. v. Lawrence, 4 Cowen 442; 3 T. R. 58.)

In Waring v. Mason (18 Wend. 434, in error), the chancellor remarked, that “the mere showing of a sample of cotton to the purchaser, at the time of sale, is not, of itself, an agreement to sell by sample, although it amounts to a representation that the cotton exhibited has been taken from the cotton offered for sale, in the usual way.” In that case, the vendees agreed to purchase, if the cotton was equal to the. sample exhibited, and desired fresh samples, which corresponded with those first shown. In the case in 4 Cowen, supra, the declara-tion of the vendee was, on exhibiting the samples, “that it was good upland cotton, or prime upland Georgia cotton, and that those were true samples.”"

Some stress, in these and other cases, was placed upon the circumstance, that the article sold was not inspected, nor in a situation to be examined, without great inconvenience. But it seems to me, that too much weight ought not to be attached to a fact of that nature. If the vendor intends merely to express, in good faith, his opinion as to the quality of an article of merchandise, it should make no difference in his responsibility, whether the vendee had or had not the power of inspecting it. If he intended to warrant it to be as represented, he should be bound, although the purchaser might detect the error, by lifting the cloth that covered the parcel. It is a question of contract, or no contract, which like every other, should be established by what was said and done at the time of the sale.

*A very cautious man would be likely to examine an article he was about to purchase, notwithstanding an express warranty; one of a different description would rely upon the integrity and business-character of the vendor, without examination, and without any contract express or implied. The first should not suffer by his vigilance, nor the latter have a contract implied in his favor, which he neither made, nor requested, in consequence of his negligence. It is said in some of the cases, that the vendee must rely upon the representation; but his confidence will not turn the expression of an opinion into a warranty, nor the want of it, deprive him of the benefit of a contract actually made. And besides, reliance is just as consistent with one state of facts as the other.

The question in this case is, and should be, in all others, what transpired at the sale ? The plaintiff called at the store of the defendant, and asked for French blankets; two or three pair were shown to him; he called again, and saw the same; plaintiff neither asked for the bales, nor was anything said about them. The blankets exhibited were sound; defendant agreed to sell, and plaintiff to buy; and this was the whole of. it. The mere showing of the blankets, at the time of sale, was not of itself an agreement to sell by sample, in other words, to warrant the goods. (18 Wend, supra, 434.) And yet this was the whole transaction.

The evidence of usage was a complete failure, as the learned judge conceded; and yet it was left to the jury, “as an item of testimpny, to show that both parties intended to contract upon the sample only.” For this purpose it was unnecessary. By the production of the specimen, the vendor, in effect, represented that the samples hQ,d been taken from the bales in the usual way, and there is no pretence that they were not. Upon this representation, the plaintiff purchased.

But the jury were also instructed, that they might cons^er *Uús evidence, “as tending to show that a personal examination of the bulk of the goods sold, was not in the contemplation of either of the parties.” If this point was material, the evidence was incompetent to establish it. A general usage might have this effect, because the sale would have been made in reference to it. But a practice of a particular individual, resident of another state, whose examination shows that he did not understand the legal import of a sale by sample, and of another witness equally ignorant, but who said, he would open every bale, if he thought he could sell them; did not tend to prove anything, except that the idea of general usage was preposterous. It did not tend to show that either buyer or seller was influenced by, or knew of the practice. The testimony was only calculated to mislead, and it undoubtedly did mislead the jury, or they could not have found a verdict for the plaintiff. I think, the judgment should be reversed.

Judgment reversed, and new trial awarded. •  