
    Oliver Beirne and another v. Claudius Dord.
    The decisions of the Court of Appeals in Kargous y. Stone, and Beirne Y. Dord, 1 Selden, 75, id. 95, have settled the law that the mere exhibition of a sample by the seller of goods at the time of the sale, is not sufficient to create a -warranty, that the bulk of the goods corresponds in quality and soundness with the sample.
    Henee, if upon the trial of an action to recover damages for the breach of a warranty in the sale of goods, nothing more is proved than the exhibition of a sample at the time of the sale, it is the duty of the court to dismiss the complaint.
    If upon such evidence, and no other, the question whether a warranty was intended by the parties should be left to the jury, a verdict in favor of the plaintiff would be set aside as contrary to law.
    It seems that the question whether a warranty was intended, depends in all cases upon the facts that occurred at the time of the sale, and upon those alone.
    Judgment of nonsuit affirmed, with costs.
    (Before Dues, Campbell, and Boswonra, J. J.)
    October 9; October 28, 1854.
    This was an appeal by tbe plaintiff from a judgment of non-suit, and was heard upon a bill of exceptions.
    The action was commenced before the Code, and was brought to recover damages for the breach of an implied warranty in the sale of goods by sample.
    The declaration averred that the defendant sold to the plaifr-tiffs 27 bales of blankets, containing 1,850 pairs, at the price of:' $8.10 per pair, by samples, and undertook and promised that all,the blankets in the bales were of the like goodness - and, quality-with the samples exhibited. It averred a breach of- this-warranty, from the unsound condition of the blankets when; sold,. to. the damage of the plaintiffs of $4,000.
    The defendant pleaded the general issue..
    Upon a former trial of the cause, in December, 1848, before Sandford, J., the plaintiff obtained a verdict for $1,131.08 damages, which the court at General Term refused to set aside, (vide 2 Sand. S. C. Rep. 89, 791.)
    Erom the judgment entered upon this-verdict the defendants appealed to tlie Court of Appeals, when tlie judgment was reversed, and a new trial ordered, (vide 1 Seld. 95, 106.)
    The trial so ordered took place before Campbell, J., and a jury, on the 16th May, 1858.
    The counsel for the plaintiff called as a witness John Reed, who testified as follows:—
    I am a merchant; I do business with Mobile, but reside in New York to buy for the Mobile market part of the year; I called with Mr. Burnside on the defendant to purchase French blankets; when we went in we asked for blankets, we asked for French blankets; I do not recollect what was said between the parties. There were two or three pairs of French blankets shown to us on the table or counter, which was used for exhibiting goods. These were all we saw; we called twice, the day before and on the day of the purchase; we presumed we saw the same blankets both days. The purchase was concluded on the 28th September, 1844. I have no recollection of any body saying where the bales of blankets which we bought by the sample were; I have no recollection whether Mr. Burnside asked where the bales were. The samples were in good condition; they were sound. I saw no damage on them; they might have been somewhat soiled by handling, but they were sound. The terms of sale were six months; the price was $3.10 a piece. There were twenty-seven bales, each bale containing fifty pair. I think the samples were on the table before us during all the time of the traffic; Mr. Burnside examined the samples, I have no recollection of the words used. The purchase was in the usual way. Mr. Dord offered to sell the blankets at a certain price. What was said during the purchase I do not recollect, but the purchase was in the usual way. The goods were to be paid by a note at six months, payable to the order of Beirne and Burnside, and Dord was to ship them to New Orleans. As soon after that period as the merchandise could arrive, and information from New Orleans could reach New York, I saw a letter to Beirne and Burnside stating the damage to the blankets; I was afterwards the bearer of a note from Beirne to Dord at Mr. Burnside’s request. After reading the note, Dord answered that the blankets were sound when shipped, and if moth-eaten, they must have become so on board the vessel. I cannot say when the note was handed to me by Beirne, but it "was between tbe time of tbe receipt of tbe letter from New Orleans and tbe 20tb January, 1845. I can’t say bow soon after bearing from New Orleans I banded tbe note to Dord, but it could not bave been immediately. I kept no copy of tbe note; I went to Mobile on tbe 20tb January, and I must bave delivered tbe note before tbat day, and there I remained until tbe middle of April. Blankets are packed in bales wbicb axe closely pressed. Tbe object of pressing is to save freight, and in tbe next place to keep them free from damage. If opened, they would be more bable to insects, if any in its vicinity, and get damaged, than if kept baled. If once opened tbe bales can be repacked as well as before, if they were to go to tbe trouble and expense of repacking by steam or bydraubc press.
    Tbe witness was then cross-examined, and testified:
    I saw a gentleman when I went with Mr. Burnside to buy tbe blankets in question, whom I supposed to be Dord. I never saw him before, but bave seen him since. It was Mr. Dord. His clerk went in for him; be came and showed us blankets, and offered to 'sell them. I do not know what articles of merchandise be dealt in. Tbe person I took to be Mr. Dord was present when Mr. Burnside bought.
    Please to 'state to tbe jury what was said by Mr. Dord upon tbe occasion, according to your best recollection.
    Dord brought us tbe blankets; be said they were cheap; be urged us to buy; be said be would sell them at tbat low price because be wanted to close tbe consignment. I considered them as cheap as any blankets we bad seen in tbe market; they were tbe cheapest we bad bad offered to us of tbe same quality. They were considered lower than any others tbat we bad seen, and Mr. Burnside bought them. I can’t say bow much lower they were than other blankets; I don’t recollect what other blankets we bad looked at, but bad seen some samples of others selling at auction. "We went round to several importing bouses to look at blankets. I do not know where tbe bales were when we looked at tbe samples; we asked no questions about tbe bales. Burnside ordered tbe bales to be sent to tbe ship Union; I do not know on what day they were sent; Mr. Dord sent a bill of lading to Beirne and Burnside; be also sent them an invoice of tbe goods ; I mean be sent tbe sale note or bill of parcels tbat is usually rendered to the purchaser. The ship’s receipt was not sent. I haye no recollection of any thing being said by Mr. Dord to us, or of any question being asked by us as to whether the bales corresponded with the samples; I haye no recollection that the word warranty or any word of any such import was used.
    No other evidence was given concerning the facts that occurred at the time of the sale; the testimony of all the other witnesses who were examined relating only to the unsound and damaged condition of the blankets. When the plaintiffs rested, the counsel for the defendant moved for a nonsuit, on the ground that there was no evidence of any warranty or fraud, or of a sale by sample importing a warranty. •
    The Judge granted the motion, and the counsel for the plaintiffs excepted to his decision.
    
      R. J. Dillon, for the plaintiff,
    argued in support of the exception, and contended that the question whether the sale was a sale by sample, implying a warranty, ought to have been submitted to the jury. He referred to Sands v. Taylor, 5 John. R. 395; Sweet v. Colgate, 20 John. 197; Andrews v. Kneeland, 6 Cow. 440; Beebe v. Roberts, 12 Wend. 410; Williams v. Stafford, 8 Pick. 250, and many other cases, as sustaining his argument.
    
      F. B. Cutting, contra,
    
    relied.upon the decisions of the Court of Appeals in Hargous v. Stone, (1 Seld. 95;) and Beirne v. Dord, (id: 95.) as conclusively showing that the nonsuit was proper and necessary.
   By the Cottet.

Duer, J.

We may believe and regret, that the recent decisions in the Court of Appeals upon which the counsel for the defendant relies, are at variance with the law as now understood in England, and in most of our sister states, and as it was formerly understood in this city, not only By the mercantile community, but generally speaking, by the members of our profession. But the law as settled by the court of ultimate jurisdiction, is that which we, as a subordinate court, are bound to follow, and we shall never permit our personal views or feelings to interfere with the discharge of this paramount duty.

The former judgment of this court in this cause was reversed in the Court of Appeals, and a new trial ordered; and the Judge upon the second trial, understanding that in the opinion of the Court of Appeals, the evidence on the part of the plaintiff was wholly insufficient to maintain the action, felt himself hound to dismiss the complaint. If we give the same construction to the decision of the Court of Appeals, we are equally bound to affirm his judgment.

It is true that our former judgment was reversed in the Court of Appeals upon the ground that the Judge, who tried the cause, in his charge to the jury, laid an undue stress upon the proof that had been given of a general usage in the sale of blankets, but it is impossible to read the opinions of the two learned Judges, (Justices Jewett and Gardiner,) with whom their brethren concurred, without being satisfied that, in their judgment, had the proof of usage been wholly rejected, there was no evidence on the part of the plaintiff that could warrant a recovery. Gardiner, J., expressly says, that had not the jury been misled by the charge of the Judge as to the usage “they could not have found a verdict for the plaintiff;” plainly meaning, that there was no evidence that could justify and sustain such a verdict. (1 Sel-den, 106.)

It is admitted that the evidence in the case now before us, is exactly the same as in the bill of exceptions upon which our former judgment was reversed. Not a single additional fact occurring at the time of the sale, has been proved. And it is upon the facts then occurring, we are now instructed that the question whether a warranty was intended, in all cases, depends.

And these material and alone material facts are thus briefly stated by Mr. Justice Gardiner: “ The plaintiff called at the store of the defendant, and asked for Erench blankets: two or three pair were shown to him. He called again, and saw the same. Plaintiff neither asked for the bales, nor was any thing said about them; the blankets exhibited were sound. Defendant agreed to sell, and the plaintiff to buy; and this was the whole of it.” The learned Judge then adds: “The mere showing of the blankets at the time of the sale was not of itself an agreement to sell by sample; in other words, to warrant the goods; and yet this was the whole transaction.” We are wholly ignorant of the force of language, or the learned Judge meant to say that “the whole transaction” afforded no proof whatever of the existence of the agreement which the complaint averred, and the plaintiff was bound to prove.

We deem it needless to pursue the discussion. We cannot be mistaken in holding that the decisions of the Court of Appeals in Hargous v. Stone, and in Beirne v. Dord, (1 Selden 73, id. 95,) have settled the law, that the mere exhibition of a sample by the seller of goods, never creates a warranty that the bulk of the goods is of the same quality as the sample, and it is a necéssary consequence of this rule, that if upon the trial of an action like the present, nothing more is proved to have occurred, at the time of the sale, than the exhibition of a sample, it is the duty of the Judge to say, that the plaintiff is not in law entitled to recover, and, consequently, to dismiss his complaint. When nothing more is proved, it would be absurd to submit to the jury the question, whether a warranty was intended, when their verdict, if rendered for the plaintiff, would be set aside, as contrary to law.

The judgment at Special Term dismissing the complaint is affirmed with costs.  