
    Jacobs v. Day.
    (New York Common Pleas—General Term,
    November, 1893.)
    The fact that at the time of a sale of goods a sample was shown is not sufficient to constitute a sale by sample.
    To constitute a sale by sample it must be fairly inferable from the.evidence that the parties mutually understood, or that the seller intended the buyer to understand, that the bulk of the commodity sold should, in kind and quality, be equal to the sample shown.
    That-a portion of the goods sold was examined by the buyer at the time of the sale-is not conclusive that the sale was not by sample.
    A sale is not conclusively one by sample because at the time of sale a sample was produced, and it was inconvenient or impracticable to examine the bulk of the goods sold.
    All of the above circumstances should be considered in arriving at a con- • elusion that the sale was or was not by sample; the question in every case is one of intention.
    A sale by sample is upon the implied condition that the bulk of tfiegoods corresponds to the sample, and after delivery the buyer is entitled to a reasonable time within which to examine the bulk of the goods-before his acceptance will be presumed, and upon breach of the condition he may rescind the sale and offer to return the goods.
    Plaintiff’s assignor agreed with defendants to buy 103 boxes of raisins if they corresponded with a sample shown; a salesman on request exhibited one box to the buyer, and refused to open any other on the plea that he had no time. The buyer paid fifty dollars on account, and fifty boxes were delivered to her which on inspection proved to be inferior to the sample shown and the box opened at time of sale; the next day she returned the fifty boxes, and refused to accept the remainder; defendants refused to accept a return of the goods, but returned trrenty dollars of the amount paid on' account. Held, that plaintiff could - rescind the sale, offer to return the goods, and was entitled to recover the balance of the money paid on account.
    Also held, that it appearing that a substantial quantity of the goods delivered did not correspond to the sample, the buyer was not compelled to accept a part delivery in performance of the contract, and it was unnecessary to show that the contents of every box delivered did not correspond to the sample shown.
    The buyer removed the boxes delivered, after defendants refused to accept their return, and accepted a return of part of the money paid on ■ account. Held, that these facts did not constitute an accord and satisfaction, as the buyer had no alternative but to keep the goods in her possession. =
    The defense of accord and satisfaction is an affirmative one and should be-pleaded.
    Appeal from a judgment for plaintiff recovered in "the District Court in the city of New York for the second judicial district.
    Action to recover return of the balance of the purchase money paid by plaintiff’s assignor on the sale of merchandise by sample, the sale having been rescinded by the buyer on the ground that the bulk delivered failed to correspond to the sample shown at the time of the sale.
    
      S. Feuchtwanger, for plaintiff (respondent).
    
      Chas. W. Dayton, for defendants (appellants).
   Bischoff, J.

The circumstance merely that at the time of' the sale a sample was produced is not sufficient to constitute the sale one by sample.” Hargous v. Stone, 5 N. Y. 73 ; Beirne v. Dord, Id. 95. To have the effect it must be fairly inferable from the evidence that the parties mutually understood, or at least that the seller intended the buyer to understand, that the bulk of the commodity sold should, in kind and quality, be equal to the sample shown. Beirne v. Dord, 5 N. Y. 95 ; Ames v. Jones, 77 id. 614. That a portion of the bulk of the goods sold was examined by the buyer at the time of the sale is not conclusive that the sale was not “ by sample.” 10 Am. & Eng. Ency. of Law, 167; Gallagher v. Waring, 9 Wend. 167. Neither is a sale conclusively one “ by sample ” because at the time of the sale a sample was produced, and it was inconvenient or impracticable to examine the bulk of the goods sold. Beirne v. Dord, 5 N. Y. 95. These circumstances, however, should be duly considered in arriving at a conclusion that the sale was or was not one by sample.” Cases above cited. The question, therefore, is in every case one of the intention of the parties to be determined from the evidence.

Plaintiff’s assignor testified that she called at defendant’s place of business to purchase raisins ; that one of the defendants opened a box from which he took a sample which he showed her; that she inquired of him if the remainder of the raisins corresponded to the sample shown, and that he assured her that such was the fact; that a day or two thereafter she again called at defendant’s place of business and met one Luther, a salesman; that she asked Luther to show her the raisins ; that the latter opened one box which he exhibited to her, and refused to open any other on the plea that he had no time; that she thereupon agreed to purchase the lot, which consisted of 103 boxes, and paid twenty dollars on account of the purchase money. Plaintiff’s assignor further testified that thereafter she paid thirty dollars more; that fifty boxes of raisins were delivered to her; that she at once examined a dozen of the boxe.s delivered; that their contents were inferior to the sample shown and the one box opened at the time of the sale; that on the next day succeeding the delivery she tendered return of the fifty boxes to defendants and refused to accept the remainder; that defendants refused to accept return of the raisins, but returned her twenty dollars of the fifty dollars which were paid by her on account of the purchase money. Henry M. Day, one of the defendants, and Luther, the salesman, testified to a different version of the facts alleged to have transpired at the time of the sale, but as it was the province of the trial justice to determine the facts upon conflicting testimony, we must, for the purposes of this appeal, assume the facts'to be as plaintiff’s assignor testified.

The production of a sample, the assurance of one of the defendants that the bulk of the raisins corresponded to it, the demand by plaintiff’s assignor to be permitted to examine the bulk, and that such examination would have entailed the necessity of opening upwards of 100 boxes, are facts which, taken in connection with the further fact that defendants’ salesman refused to accord plaintiff’s assignor an opportunity to examine more than one box, reasonably lead to the inference that it was intended at the time of the sale that plaintiff’& assignor should rely on the sample shown, and her testimony indicates that by force of circumstances she did so. Within the cases hereinbefore cited, the sale to her must, therefore, be deemed to have been one “ by sample.” Such a sale is upon an implied condition precedent that the bulk of the goods sold corresponds to the sample. The buyer is entitled, after delivery, to a reasonable time within which to examine the bulk before acceptance will be presumed, and upon breach of the condition he may rescind the sale and offer to' return the goods. Benj. Sales, § 895 ; Osborn v. Gantz, 60 N. Y. 540.

o

It was not necessary for plaintiff to show that the contents of every box delivered did not correspond to the sample. It was sufficient that a substantial quantity of the raisins delivered was deficient in that respect to justify the rejection by plaintiff’s assignor of all, since she could not be compelled to accept part delivery in performance of the contract of sale on defendants’ part. Benj. Sales, §° 690.

It appears that upon the tender of return of the fifty boxes delivered, defendants refused to receive them; that one of the defendants told plaintiff’s assignor to remove them, which she did, and that defendants at the same time returned to her twenty dollars of the fifty dollars paid on account of the purchase money, which she accepted. These facts, it is contended for appellants, constitute an accord and satisfaction. To support such a plea, however, every element of a valid agreement ■to relinquish the remainder of the claim must he present. 5 Lawson’s Rights, Rem. & Pr. 4228, § 2567 ; 1 Am. & Eng. Ency. of Law, 94; 2 Pars. Cont. 681, § 4: 1 id. 8, § 3; Kromer v. Heim, 75 N. Y. 574; Fuller v. Kemp, 40 N. Y. St. Repr. 672; 138 N. Y. 231, 235. The evidence in the present cáse is palpably insufficient to establish the aggregatio menUtom since, upon defendants’ refusal to accept return of the raisins delivered, plaintiff’s assignor had no alternative but to keep them in her possession, and that fact alone, therefore, is inconclusive of her voluntary acceptance of the goods which appellants urge as part consideration for the alleged agreement of accord and satisfaction. The defense in any event is an affirmative one and should have been pleaded. It is too late to urge it for the first time on appeal.

Exceptions to rulings respecting the admission or exclusion of evidence are not urged as presenting grounds for reversal. The judgment should, therefore, be affirmed, with costs.

Giegerich, J., concurs.

Judgment affirmed.  