
    William B. Bradford versus David Manly.
    A sale by sample is tantamount to a warranty, that the article sold is of the same kind as the sample, f
    t See Conner vs. Henderson, 15 Mass. Hep. 319.
    Assumpsit on divers special counts, to recover the difference in value between two casks of cloves, alleged to be sold by sample to the plaintiff, and the cloves actually delivered in virtue of the sale.
    
      At the trial, which was had on the general issue, before the Chief Justice, at the last November term in this county, the plaintiff produced a bill of parcels of 602 pounds of cloves, at $ 1.50 per pound, on which payment was acknowledged by the defendant to have beer, received in the plaintiff’s note, payable in sixty days. He then produced a witness, who testified, that on the 4th of January, 1814, dm defendant came to the plaintiff’s store, with a sample of cloves in a paper, and asked the plaintiff if he wished to purchase some cloves. The witness examined the sample, and found the cloves to be of the best quality of Cayenne cloves ; and the defendant said, at a subsequent time, that the sample he showed was of fair cloves. On the same day that the purchase was made and the bill of parcels given, the casks were removed to the plaintiff’s store, the price being that of cloves of the best quality.
    It was in evidence, that the sample was not taken from * the casks sold, but from an open barrel, out of which those casks had been filled, they not being before quite full ; but the defendant did not know from whence the sample came. The market price of this article having fallen immediately after the sale, the plaintiff made no attempt to sell the cloves ; and the casks were not opened, until May, 1815, when, there being some application for the purchase of them, they were opened, and were found to contain a mixture of Cayenne cloves and an inferior and distinct species of the same article, the growth of the East Indies, in the proportion of one third of the latter, which was worth from a fifth to a quarter less than the former. Whether the casks had been opened, or exposed, or mixed, while in possession of the plaintiff, were questions duly submitted to the jury. Before instituting this suit, and after the defect was discovered, the plaintiff offered to return the cloves, but the offer was not accepted.
    The defendant objected to the admission of any evidence, other than the bill of parcels (which was of cloves generally without designating the kind), to prove that any distinct species or quality of the article was sold. But the objection was overruled, and the jury were instructed, that, although no fraud was proved or suggested, and no express warranty, other than what might be inferred from the exhibition of the sample, was proved ; yet, if they believed, from the evidence, that the purchase was made upon the confidence that the whole quantity was represented by the sample ; and that it was the intention of the defendant so to represent by exhibiting the sample ; and that the article, when sold and delivered, was materially different in quality and value from that which was shown in the sample ; they ought to find a verdict for the plaintiff, and assess in damages the difference . value at the time of the sale.
    The jury returned a verdict for the plaintiff, having found the facts specially as above stated, and having also found that there was no fraud in the sale on the part of the defendant. The defendant excepted against the * direction of the judge, and moved for a new trial on that ground, and also on account of the admission of parol evidence to prove the contract.
    
      Shaw, for the defendant,
    urged a new trial.
    1. Because oral testimony was admitted by the judge at the trial, to enlarge and vary the contract of sale, which was in writing, and to prove a warranty or undertaking, which does not appear on the bill of parcels.  There is no distinction in principle between a bill of parcels and a more formal instrument. It is intended to show the terms of the sale. The parties, subject-matter, quantity, price, payment, date, &c., are all distinctly specified. Nor is it unusual to introduce express stipulations, when any particular liability is assumed. A warranty must be upon the sale, one of the incidents arising out of it, and not a distinct collateral undertaking. 
    
    2. No evidence was given, conformable to either of the counts in the declaration. If the plaintiff meant to rely on an implied promise, he should have declared accordingly. A special contract must be proved as laid.  The declaration in this case sets forth three special promises, none of which were attempted to be proved. “ 1st, to deliver 602 pounds of fair merchantable Cayenne cloves according to a certain sample ; 2d, to deliver two other casks of cloves, 602 pounds, which should be according to a certain sample, &c. ; 3d, to deliver, &c., and that said cloves, so to be delivered, should all be of like goodness and quality with a certain sample, &c. ; 4th, for money had and received.” But this last count will not lie, where the contract is open, and not rescinded either by some previous condition or subsequent assent. 
    
    3. To charge the vendor, there must be an express warranty, or evidence of fraud. A mere representation, without technical words importing a promise or stipulation, does not constitute a warranty.  The verdict expressly negatives fraud.
    Should the plaintiff attempt to take this case out of the * operation of the authorities cited, by urging that the article differed in nature and kind from the article contracted for, and so the contract to sell has not been performed ; it may be answered, that the same reasoning, if sound, might have been urged, in nearly all the cases cited, with much greater force ; particularly in the cases of the Bezoar stone in Cro. Jac. 4, and the Braziletto wood, in 2 Caines, 48. But the contract was wholly executed and complete by the delivery of the cloves by the vendor, and the acceptance of them by the vendee. The latter cannot then proceed as upon a contract to sell, still open and unexecuted ; but must have his remedy, if' any, for a fraud, or upon a warranty, as upon a sale executed. 
    
    
      Davis [Solicitor-general] and Thatcher, for the plaintiff.
    
      
      
        Peakes's L. of Evid. 112. — 2 Caines’s Rep. 161. — 1 Johns. 413, 461, 502.— 7 Mass. Rep. 518. — 11 Mass. Rep. 27.
    
    
      
      
        Finch's Law, 189. — 1 Strange, 414.
    
    
      
       1 D & E. 447. — 1 Johns. 96.
    
    
      
       2 Comyn on Contracts, 75. — 1 D & E. 133.
    
    
      
      
        Cro. Jac. 4. — 1 Dyer, 75.—2 East, 314. — 2 Comyn on Contracts, 265.— 2 Caines, 48 — 1 Johns. 96, 129, 421, 502, 534. — Cooper's Justinian, 609, note. — 7 Mass. Rep. 284. —10 Mass Rep. 197.
    
    
      
       1 Mass. Rep 101.
    
   Parker, C. J.,

delivered the opinion of the Court. The first point taken by the defendant’s counsel is, that parol evidence was admitted, to control or explain the contract in writing, which subsisted between the parties.

The objection goes upon the supposition, that a common bill of parcels, given upon or after the purchase of goods, is evidence, and the only proper evidence, of such a contract. But it is not so. The bargain is usually made verbally, and without any intention that it shall be put in writing ; and the bill of parcels is intended only to show that the goods have been purchased and paid for. It is seldom particular, or descriptive of the whole contract between the parties. But, if it were not so, the paper introduced in this case is ambiguous with respect to the subject of the bargain ; and the ambiguity is latent, so that parol evidence may be admitted to explain it. It states only that “ 2 casks of cloves ” were purchased ; leaving it uncertain what kind of cloves, of which it appears in the case that there are at least two kinds, differing materially in quality and value. We think this objection was properly overruled.

We may then come to the principal question, namely, Whether the evidence in the cause proved a contract to * sell cloves of a different kind from those which were de livered. The defendant exhibited a sample, by which the plaintiff purchased.' Among fair dealers there could be no question but the vendor intended to represent that the article sold was like the sample exhibited ; and it would be to be lamented, if the law should refuse its aid to the party who had been deceived in a purchase so made.

The objection is, that no action upon a warranty can be maintained, unless the warranty is express; and that no other action can be maintained, unless there be a false affirmation respecting the quality of the article. If such were the law, it would very much embarrass the operations of trade, which are frequently carried on to a large amount by samples of the articles bought and sold.

The authorities cited by the defendant’s counsel have been carefully looked into ; and we think they do ,iot militate with this decision ; unless it be the case of the Bezoar stone, which we think would not now be received as law in England ; certainly not in our country. The vendor sold the stone as and for a bezoar stone, to one unacquainted with such articles, and it turned out to be of inferior value. The court held that no action would lie ; and some of the judges stated, that, even if the vendor had known that it was not a bezoar, and it had been so alleged, an action could not be maintained without an express warranty. The other case is that of Parkinson vs. Lee. There the hops sold were of the same kind and quality as the sample ; but there was an unknown deterioration by fermentation, caused by the grower of the hops, and not by the vendor. Hops being usually sold in pockets, and the quality ascertained by sample, it was held that the innocent vendor was not responsible to the vendee, for an unknown inherent defect, without an express warranty. That case does not militate with our opinion in the case at bar.

The fair import of the exhibition of a sample is, that the article proposed to be sold is like that which is shown as a parcel of the article ; it is intended to save the * purchaser the trouble of examining the whole quantity. It certainly means as much as this, “ The thing I offer to sell is of the same kind, and essentially of the same quality, as the specimen I give you.” I do not know that it would be going .too far to say, that it amounts to a declaration that it is equally sound and good. But it is not necessary to go so far in the present case ; and we are not disposed to question the correctness of the decision in Parkinson vs. Lee.

It is expressly found by the jury, in the case at bar, that the cloves delivered were different in kind from those which composed the sample, and inferior in value, not from decay or exposure, but that there is a specific difference in the respective plants from which they are produced. Surely, if a man were to exhibit to me a parcel of hyson tea as a sample, to induce me to buy a chest, and I should pay him the price of hyson, and he should deliver me a chest of bohea or souchong, I might recover the difference in value, if he should refuse to do me justice, although he did not expressly warrant, that the tea in the chest was the same as that in the sample. Indeed, the exhibition of a sample must, in all fair dealing, stand in lieu of a warranty or affirmation. It is a silent, symbolical warranty, perfectly understood by the parties, and adopted and used for the convenience of trade.

The cases must be very strong, to establish a principle so unjust, and so productive of distrust and jealousy among traders, as that contended for by the defendant’s counsel. For what purpose is the sample exhibited, unless it is intended as a representative of the thing to be sold ? What would an honorable merchant say, if, when he took from a mass of sugar or coffee a small parcel, and offered to sell by it, the man who was dealing with him should ask him if it was a fair sample, and call upon him to warrant it so ? Mercantile honor wo Jd instantly take the alarm ; and, if such questions should become necessary, there would be no need of that honor, which happily is now general, and * almost universally relied upon. That there is not an unknown and invisible defect, owing to natural causes, or to previous management by some former dealer, he may not be presumed to affirm when he shows the sample ; and as to these particulars an express warranty may be required, consistently with confidence in the fair dealing of the vendor. But that the thing is the same, generically and specifically, as that which he shows for it, he certainly undertakes, and if a different thing is delivered, he does not perform his contract, and must pay the difference, or receive the thing back and rescind the bargain, if it is offered him.

A case similar to this in principle came before me two or three years ago, at nisi prius. An advertisement appeared in the papers, which was published by a very respectable mercantile bouse, offering for sale good Caraccas cocoa. The plaintiff made a purchase of a considerable quantity, and shipped it to Spain, having examined it at the store before he purchased ; but he did not know the difference between Caraccas and other cocoa. In the market to which he shipped it, there was a considerable difference in value, in favor of the Caraccas. It was proved, that the cocoa was of the growth of some other place, and that it was not worth so much in that market. I held that the advertisement was equal to an express warranty; and the jury gave damages accordingly. The defendants had eminent counsel, and they thought of saving the question ; .but afterwards abandoned it, and suffered judgment to go. Surely, if a sample of Caraccas cocoa had been shown to the purchaser, and any other cocoa had been delivered to him, the case would not have been less strong.

We are all decidedly of the opinion, that a sale by sample is tantamount to an express warranty, that the sample is a true represent? - live of the kind. There must, therefore, be entered

Judgment according to the verdict.

[Long on Sales, 2d Amer. ed., 191,192 —Gallagher vs. Waring, 9 Wend. 20.— Beebe vs. Robert, 12 Wend. 413. — Williams vs. Spafford, 8 Pick. 250. — Ed.] 
      
      
        Chandelor vs. Lopus, Cro. Jac. 4. — S. C., Dyer, 75.
     
      
       2 East, 314.
     