
    Cheney Ames, Respondent, v. David Jones, Appellant.
    (Submitted April 18, 1879;
    
    decided May 20, 1879.)
    This action was brought to recover damages for the breach by the defendant of a contract for the purchase from William V. Detlor, the plaintiff's assignor, of 30,000 bushels of barley. The defense was that the purchase was by sample; that the barley was greatly inferior to the sample shown, and that in consequence defendant refused to receive it.
    In the fall of 1870, Detlor purchased from producers in the vicinity of Napanee, Canada, 40,000 bushels of barley. In making such purchases it was undisputed that he selected only the best barley offered, refusing to take and rejecting inferior barley. He shipped the barley to Oswego, and stored it in elevators there. In November, of the same year, an agent of the defendant visited Oswego, and was there shown a sample of this barley,» and he took it with him to New York and delivered it to the defendant. Thereupon the defendant telegraphed to Detlor as follows : “ Will give one-twenty for your thirty thousand choice Napanee afloat in New York; ” and Detlor replied by telegraph, as follows: “ Will accept your offer of one-twenty; can give you ten thousand more if you wish — answer.” These two dispatches were the entire negotiation between the parties.- and constituted the contract. There was no negotiation for a purchase of the barley at the time the sample was shown defendant's agent at Oswego, and it did not appear that Detlor knew that a sample had been delivered to the defendant. Held, that it could not be said that this was a sale by sample. The referee did, however, upon defendant’s request, find as follows : “ That the contract had reference to choice Napanee barley, then owned by Detlor, and equal and similar to a sample thereof exhibited by the agents of Detlor to the agent of the defendant prior to the contract of purchase.” The court state this finding to be somewhat obscure; but probably means that the contract had reference to the choice Napanee barley, then owned by Detlor, of which a sample had been exhibited to defendant; that a finding that Detlor agreed that the barley should be equal and similar to the sample, would have been unauthorized both by the law and the facts ; that defendant was therefore entitled to demand under this contract choice Napanee barley; and the first question to be determined was, what was meant by “ choice Napanee barley ? ” The referee found that it meant “ barley grown in the vicinity of Napanee, and selected as being of superior quality.” The court, in view of the evidence given upon the trial, held that he construed the contract correctly. The referee found that the barley tendered in performance of the contract answered the contract, as thus construed. Held, that the evidence authorized such a finding.
    
      Francis Fernán and W. A. Beach for appellant.
    
      Cyrus Whitney and Albertus Ferry for respondent.
   Earl, J.,

reads for affirmance.

All concur.

Judgment affirmed.  