
    STERN et v. BEVERLY CO.
    No. 19983.
    Supreme Court
    On motion to certify.
    Dock. July 16, 1926;
    4 Abs. 493.
    1083. SALES — In a suit for breach of warranty in a sale by sample, may defective portions of the merchandise sold be admitted in evidence ?
    Attorneys — C. K. Friedman and P. H. Taylor for Stem; Kirkbride, McCabe & Boesel for Company; all of Toledo.
   This action was brought originally in the Lucas Common Pleas by The Beverley Company against Adolph Stern and Isadore Ginsberg upon an account.

It appears that the subject of the account was a car load of cots upon which Stern and Ginsberg had received many complaints. The sale hal been made by sample.

The judgment of the Common Pleas in favor of the Company was affirmed by the Court of Appeals.

Plaintiffs in error contend:

1. That the court erred in excluding certain exhibits consisting of defective cots which had been returned.

2. That it is proper to sue for breach of a warranty of fitness rather than to rely upon a suit for failure of the merchandise to conform to the sample.  