
    FIRMIN COUSINERY et al., Plaintiffs and Respondents, v. JOHN PEARSALL et al., Defendants and Appellants.
    SALE OP GOODS BY SAMPLE.
    The genera] rule is that it must clearly appear that the contracting parties mutually understood and agreed that they were dealing by sample, and that the agreement was, that the bulk of the goods not exhibited was equal in value and corresponded in quality to the sample of the same exhibited to the purchaser.
    The exhibition of a portion of the goods, purporting to be a sample, is not a fact of itself sufficient to make the seller liable on an implied warranty in regard to the nature, value, and quality of the goods being equal to the sample.
    The seller must represent and warrant that the goods sold correspond, and are in all respects equal in value and quality to the sample displayed.
    
      Sale by auction. Memorandum of sale by auctioneer, proved on trial without objection. The effect of its non-appea/rance in the case on appeal.
    
    If an appellant seeks to raise the question of the sufficiency and regularity of the memorandum of the sale made by the auctioneer, and which was proved on the trial without objection, he must procure the same to be incorporated in the case, and thus furnish the court the means of deciding upon its sufciency. In such a case, the court on appeal must necessarily assume that it was sufficient, and that there was no error of the judge before whom the case was tried in deciding that the same was sufficient.
    DELIVERY.
    Proof of a tender of a portion of the goods, and a refusal or rejection of the same, or a refusal to receive the bulk of the goods, is equivalent to a complete delivery of the whole.
    
      Tie-sale of property once sold to a party who refuses to accept and pay for the same.
    
    The general rule requires that the identical property sold shoald be separately sold in mass or by lot, and the original buyer credited with the proceeds of such sale. The goods should not be mingled with other like property. But if, from the-nature of the case such separation and separate sale was-impracticable, and the general amount of like property was sold without being specifically separated from other like property, then and in such case the highest value obtained for any one lot of said property thus re-sold, should be taken as the price or value for which the original buyer should be-credited.
    Before Freedman and Speir, JJ.
    
      Decided December 6, 1875.
    The action is to recover the price of lemons sold by the plaintiffs to the defendants at public auction. The defendants refused to take delivery, and the lemons were then resold at public auction and the proceeds of sale credited upon the claim. The goods arrived at New York by the steamship Alexandria from the Mediterranean, shortly before the day of sale, and were put into the hands of auctioneers, who had at the same time the selling of the rest of the cargo of the vessel. The cargo consisted of four thousand five hundred and sixty boxes of lemons, all sold at the same time by the same auctioneers, and of these the plaintiff had one thousand five hundred and forty boxes marked “ M. D.,” and three hundred and sixty boxes marked “ A. M.”
    The defense set up in the answer is, that it was a sale by sample, and that the bulk of the lemons offered for delivery did not correspond with the sample, and that by the heat of the season and the vessel they had been damaged so as to be entirely worthless.
    The defendants bid for and purchased three lots at varying prices, being an average of a little over five dollars and fifty cents a box, when sound lemons- of the same kind were known then to be worth six dollars and fifty cents a box. The plaintiffs made delivery in the usual way, taking the defendants in turn as they purchased, when they came out of the vessel; the great bulk of them were very badly damaged on the steamship, some comparatively less damaged. Three loads were sent to defendants’ store, who declined to take any but the best, and to reject the rest. The rejected lemons were taken to the storehouse and condemned by the board of health, but on a resale they were disposed of, and the amount credited to the defendants. Upon the trial the defendants asked to go the jury on various questions, but the court refused, and directed a verdict for the amount claimed, directing the exceptions to be heard in the first instance at general term. To which the defendants excepted.
    Evarts, Southmayd & Choate, plaintiff’s attorneys; Joseph H. Choate, of counsel.
    
      Nathaniel Niles, defendants’ attorney ; W. W. Niles, of counsel.
   By the Court.—Speir, J.

The defendants first rely upon the principal defense set up in the answer of sale by sample. They claim, that though the goods were sold as damaged, yet if sold by sample, the sample should be a fair specimen of the whole.

As a general rule on a sale by sample, it must appear that the parties mutually understood they were dealing with the sample, on an agreement or understanding that the bulk corresponded with it, even though the seller exhibit .a sample at the time of the sale, that of itself will not make it a sale by sample, so as to render the seller liable on an implied warranty as to the nature and quality of the goods. But if the seller warrants that the whole bulk corresponds with the sample, he is liable in case it turns out to be different, although it was sold as a damaged article.

In this case it appears that the sale took place in pursuance of an advertisement made by the auctioneers, stating the quantity of Menton lemons to be sold, which could be seen on pier 20 ¡North River.

The defendants saw some of the goods that were discharged, and some of the damaged lemons, before the sale commenced. When the sale began, the auctioneer gave express notice that the goods were sold as they were, and that no allowance would be made for anything whatsoever. It seems to have been understood by persons present, that the goods offered were a damaged lot, and it is plain that the defendants bought them at damaged prices ; under these circumstances, the fact that a part of the "lemons before the sale were discharged and on the dock, could not make them samples of the rest.

The defendants next contend that as no payment nor memorandum was made, nor any part of the goods accepted and received, as required by the statute, they could not be held. The auctioneer’s book containing his memorandum was produced and read on the trial, and the auctioneer was examined in relation to it by defendants’ counsel. ¡No objection was then raised, nor is the memorandum to be found in the case to enable us to determine whether it complied with the statute of frauds, or the statute relating to auction sales. If the appellant seeks to raise the question, I think it was clearly his duty, in making up his case, to furnish this court with the means of deciding it. This memorandum was before the court, as appears from the record, and must have been passed upon by the learned judge who tried the cause. There is nothing to show that there was error, and it should not in such a case be presumed. There was in law a sufficient delivery of the lemons; it was not necessary tc prove a complete delivery, after proving a tender of the lemons and rejection. The defendants purchased eight hundred and forty boxes out of one thousand five hundred and forty marked “M. D.,” the rest, seven hundred were sold to other parties. These eight hundred, and forty boxes were taken in the order as they came out of the vessel, and in their turn as purchasers, and three or four truckloads were, as a part of the eight hundred and forty, tendered to the defendants, who refused to take any but the best. They were not entitled to take their choice of the whole cargo, or out of the whole invoice by the marks of which they bought. The defendants had notice of the resale of the lemons tendered and refused, and this was evidence of the value of those damaged.

The express announcement at the sale that the goods were damaged, their actual and intrinsic value, or that they were subsequently condemned by the Board of Health, is of no consequence. It seems to me that the only practical method of re-selling the goods, under the circumstances, was to re-sell them in the mass, or. by lot indiscriminately, and to credit the defendants with the highest price. The general rule recognized by the law, requiring that goods re-sold on account of a party refusing to receive them, when lawfully tendered, is that they should be separately sold, and not mingled with others. In the present case the rule could not be observed, and the plaintiffs assuming to make the sale in the defendants’ interest should in fairness account, I think, for the highest price obtained. The notice to the defendants of reselling being, in the absence of other evidence, evidence to show value for the purpose of this case, the highest price must be the true measure of defendant’s credit on such a sale.

I can not see that the defendants’ exceptions to the refusal of the court to submit to the jury are well taken.

Defendants’ exceptions must, therefore, be sustained, unless plaintiffs consent to a reduction of one hundred and sixty-eight dollars in the amount of the verdict, in which case the exceptions are overruled, and judgment ordered for the plaintiffs upon the verdict as reduced.

Freedman, J., concurred.  