
    Thomas N. Bolles, Resp’t, v. Valentine & Co., App’lts.
    
      (New York Common Pleas, General Term,
    
    
      Filed December 3, 1888.)
    
    Sale—By sample—Effect of retention by purchaser—Action for price.
    In an action for the price of goods which were sold by sample, without any representation as to their condition, and which are accepted and retained by the purchaser, it is no defense that they are not properly packed, and that the brands on the cases have been effaced, when the defects complained of were potent on first inspection.
    Appeal from a judgment on a verdict entered in favor of the plaintiff, after a ti-ial with a jux-y.
    On November 12, 1886, defexxdaxxt called on plaintiff to purchase kausi gum. Plaintiff offered to sell to him provided he would first take five cases of each kind of gum wanted, as a sample. Five cases of each kind were sent to and receipted for by defendant on same day, and a day ox-two later he examined them, and on November 16, 1886, he ordered 900 cases of the gum, which were delivered on the 1st and 2d of December, and were receipted for. The bill for the fifteen sample cases was $420; subsequently, $15,000 was paid by defendant to plaintiff, of which $420 was applied in payment of sample cases, and the balance $14,580, on account of the 980 cases, leaving $10,028 due, for whicb this action was brought. On December 8, 1886, defendant wrote to plaintiff objecting to the gum, and on same day plaintiff replied. The defendant never returned or .offered to return the gums.'
    
      Dillanay, Davenport & Leeds, for app’lts; Knox & Woodward, for resp’t.
   Van Hoesen, J.

The case was fairly and fully submitted to the jury, who found that the gum delivered was fully up to the samples that were examined by the defendant when he made the purchase. There is no doubt that the sale was by sample; the defendant never offered to return the gum, which rose in market price after he received it. His great effort at the trial was to show that the gum came in the cases that bore certain marks, indicative of the packing of the gum in New Zealand, and that a part of the gum had been re-paqked by the defendant in the city of New York, which re-packing, he contended, diminished the market value of the article. But there was nothing to prove ihat the defendant bought, or thought he was buying, goods, the value of which depended upon the mai’ks on the cases.

On the contrary, the defendant himself, in his testimony, said: I told the plaintiff that I had come to buy some gum; he took me to some cases that were open, and showed me eight or ten cases. I said, I don’t care for those—these three are about what I want. He asked me to go up stairs, and have some turned out so that I could see it. I said I see what is here, and I am in a hurry; send me over five cases of each of these three. He did so that afternoon. I looked at those cases, in connection with eight or ten other lots, but did not open them nor turn them out. On the afternoon of the sixteenth, I went in, hut Bolles was not there. I told them to book me 1.000 cases.”

It is obvious that the cases were not bought by their marks, and that no representation was made that the gum had not been repacked after its arrival in New York.

When the gum was delivered, the defendant wrote to the plaintiff, “ every case of the T. N. B. ‘i,’ and of the T. N. B. ‘g. o.,’ has been opened, and bunglingly renailed; many of the brands have been scraped off and rebranded, and the gum itself has been badly mixed with every inferior low grade gum. The 100 cases “T. N. B., e., we have as yet found nothing to complain of.”

The opening of the cases, the careless renailing of them, and the alteration of the brands, were open to view, and the mixing of the gum could be discovered on the slightest examination, and yet the defendant thinking that notwithstanding the condition of the article, he had made a good bargain, never offered to return the gum, or to rescind the purchase. The jury has found that the bulk of the gum was equal to the sample, and there was, therefore, no breach of the warranty implied in a sale by sample. The defects in the packing and the brands were visible to any eye. Not a word was said in the negotiations for the sale, respecting the marks on the cases, or the repacking of the gum after its arrival in New York. The defendant accepted and kept the gum. All these facts are indisputable. Under these circumstances of what consequence was it that repacking impaired the market price of the gum, and that certain marks on the cases indicated that the gum had been packed in New Zealand.

It does not need the citation of. authorities to support the judgment that was given for plaintiff.

Judgment affirmed with costs.

Larremore, P. J., concurs.  