Y.) 262; S. C. affirmed, 4 N. Y. (4 Comst.) 122; Hale v. Rawson, 4 C. B. (N. S.) 85; Smith v. Myers, L. R., 5 Q. B. 429; Story on Sales, § 249. The contract is executory, and does not pass the property in the goods to arrive; it is merely an agreement for the sale and delivery of the articles named, at a future period, when they shall arrive. Reimers v. Ridner, 26 How. (N. Y.) 385; S. C., 2 Robt. 11; Benedict v. Field, 16 N. Y. (2 Smith) 597; Neldon v. Smith, 36 N. J. Law, 148.

§ 17. Sale by sample. When a contract for the sale of goods is made by sample, strictly speaking, it amounts to an undertaking on the part of the seller with the buyer, that all the goods are similar, both in nature and quality, to those exhibited; and, if they do not correspond, the buyer may refuse to receive them, or, if received, he may return them in a reasonable time allowed for examination, and thus rescind the contract, or he may keep them and recover damages for the breach of the implied warranty. Magee v. Billingsley, 3 Ala. 679; Parker v. Palmer, 4 B. & Ald. 387; Lorymer v. Smith, 1 Barn. & C. 1; Whittaker v. Hueske, 29 Tex. 355; Day v. Raguet, 14 Minn. 273; Hanson v. Busse, 45 Ill. 496; Grimolby v. Wells, L. R., 10 C. P. 391; S. C., 12 Eng. Rep 451; Williams v. Spafford, 8 Pick. 250. So, it is held that an executory contract to manufacture and deliver articles, corresponding in all respects to a sample shown, binds the party to furnish articles equal to the sample in manufacture, material, description, quality, fitness and durability, for the use for which they were designed. And if a defect exists which could not be determined by examination upon the receipt of the articles, but only upon use, it is not the duty of the vendee to rescind the contract, and return or offer to return the property upon discovery; but he may retain them and recover or recoup his damages. Gurney v. Atlantic, etc., Railway Co., 58 N. Y. (13 Sick.) 358. And see Day v. Pool, 52 N. Y. (7 Sick.) 416; S. C., 11 Am. Rep. 719; Heilbutt v. Hickson, L. R., 7 C. P. 438; S. C., 3 Eng. R. 328; Jones v. Just, L. R., 3 Q. B. 197.

It must not, however, be assumed, that in all cases where a sample is exhibited, the sale is a sale "by sample." If the contract be connected, by the circumstances attending the sale, with the sample, and refer to it, and it be exhibited as the inducement to the contract, it may be a sale by sample; and then the consequence follows that the seller warrants the bulk of the goods to correspond with the specimen exhibited as a sample. Rose v. Beatie, 2 Nott & McC. (S. C.) 538; Brower v. Lewis, 19 Barb. 574. And see the cases cited above. But the mere circumstance that the seller exhibits a sample at the time of the sale will not, of itself, make it a sale by sample, so as to subject the seller to VOL. V.-70

liability on an implied warranty as to the nature and quality of the goods; it may be exhibited, not as a warranty that the bulk corresponds to it, but merely to enable the buyer to form a judgment on its kind and quality. Gardiner v. Gray, 4 Camp. 144; Powell v. Horton, 2 Bing. N. C. 668; Josling v. Kingsford, 13 C. B. (N.S.) 447; Barnard v. Kellogg, 10 Wall. 383. Whether a sale be a sale by sample or not is a question of fact for the jury to find from the evidence in each case; and to authorize a jury to find such a contract, the evidence must satisfactorily show that the parties contracted solely in reference to the sample exhibited. In other words, the evidence must be such as to authorize the jury, under all the circumstances of the case, to find that the sale was intended by the parties as a sale by sample. Waring v. Mason, 18 Wend. 425; Osborn v. Gantz, 6 Jones & Sp. 148; S. C. affirmed, 60 N. Y. (15 Sick.) 540; Jones v. Wasson, 59 Tenn. (3 Bax.) 211; Beirne v. Dord, 5 N. Y. (1 Seld.) 95. And see Boyd v. Wilson, 83 Penn. St. 319.

A sale is sometimes made by what is known as "average sample." Thus, if the goods sold consist of several varieties and qualities of the same article, and the sample is made by mixing proportional parts of the different varieties and qualities, the warranty is that the whole quantity, if mingled together, would be of a quality equal to the sample; and it is no breach of the warranty that some of the packages are inferior to the sample, so long as it fairly represented the whole. Leonard v. Fowler, 44 N. Y. (5 Hand) 289.

It has been said that the doctrine of implied warranty, in a sale by sample, is not favored by the common law, and that, strictly speaking, a contract of sale by sample is not a warranty of quality, but an agreement of the seller to deliver, and of the buyer to accept, goods of the same kind and quality as the sample. The principle applicable is, that the seller must deliver that which he has agreed to sell, and if he does not, the purchaser may rescind the contract, or receive the goods and claim a deduction for their relative inferiority in value. Gunther v. Atwell, 19 Md. 157. And see 1 Sm. Lead. Cas. (7th Am. Ed.) 326. \ But, in the absence of fraud or latent defects, the acceptance of an article upon an executory contract of sale, after an opportunity for examination, is a consent and agreement that the quality is satisfactory and conforms to the contract, and bars all claim for compensation on account any defects; and the result is the same whether the agreement as to the quality is implied or expressed. Dutchess Company v. Harding, 49 N. Y. (4 Sick.) 321; Gaylord Manuf. Co. v. Allen, 53 N. Y. (8 Sick.) 515.

of

§ 18. Warranty in express terms. A warranty in a sale of goods" is

an express or implied statement of something which a party undertakes shall be a part of the contract, and, though part of the contract, collateral to the express object of it." Lord ABINGER, in Chanter v. Hopkins, 4 M. & W. 399. See, also, Mondel v. Steel, 8 id. 858; Foster v. Smith, 18 C. B. 156. Representations descriptive of the thing sold, or which may be taken as expressive of the opinion of the vendor, do not necessarily import a warranty. Baker v. Henderson, 24 Wis. 509; Horton v. Green, 66 N. C. 596; Tewkesbury v. Bennett, 31 Iowa, 83; Carter v. Black, 46 Mo. 384; Lawton v. Keil, 61 Barb. 558; Hopkins v. Tauqueray, 15 C. B. 130. Yet, where representations are made by the vendor, of the quality of the thing sold, or its fitness for a particular purpose, if intended as a part of the contract of sale, and the vendee makes the purchase relying upon such representations, they will in law constitute a contract of warranty. Id.; Richardson v. Grandy, 49 Vt. 22. There may be an express or implied warranty when the contract is executory as well as when it is executed. Polhemus v. Heiman, 45 Cal. 573; Parks v. Morris, etc., Co., 54 N. Y. (9 Sick.) 586. But see Osborn v. Gantz, 60 N. Y. (15 Sick.) 540, where it is held that a warranty is an incident only of a completed sale, and has no present vitality and force in an executory contract of sale. See, also, Gurney v. Atlantic, etc., Railway Co., 58 N. Y. (13 Sick.) 358, 364. And a warranty made after the sale, being wholly without consideration, is void, unless some new consideration be given to support it. Summers v. Vaughan, 35 Ind. 323; S. C., 9 Am. Rep. 741; Congor v. Chamberlain, 14 Wis. 258; Roscorla v. Thomas, 3 Q. B. 234.

No precise form of expression is necessary to create a warranty. If the vendor at the time of sale affirms a fact as to the essential qualities of his goods in clear and definite language, and the purchaser buys on the faith of such affirmation, that is an express warranty. Beals v. Olmstead, 24 Vt. 115; Bryant v. Crosby, 40 Me. 9; Thorne v. McVeagh, 75 Ill. 81; Polhemus v. Heiman, 45 Cal. 573; Callanan v. Brown, 31 Iowa, 333. But a mere affirmation that a thing is good or sound, a general praise, commendation, opinion, or belief, does not amount to a warranty when not so intended. Id.; ONeal v. Bacon, 1 Houst. (Del.) 215; Leonard v. Peeples, 30 Ga. 61; Bond v. Clark, 35 Vt. 577; Baum v. Stevens, 2 Ired. (N. C.) L. 411; Reed v. Hast ings, 61 Ill. 266; Dickens v. Williams, 2 B. Monr. (Ky.) 374. Thus, the mere affirmation of the soundness of a horse, when exposed for sale, is not a warranty, unless so intended by the parties. Foster v. Cald well, 18 Vt. 176; House v. Fort, 4 Blackf. (Ind.) 293. And if the vendor, at a sale of his horse, say he is sure, he is safe, and kind, and gentle in harness, it is a representation, not a warranty. Jackson v.

Wetherill, 7 Serg. & R. 480. But an affirmation at the time of a sale is a warranty, provided it appear in evidence to have been so intended. Pasley v. Freeman, 3 Term R. 57. It is a question of intention from the words used, the circumstances and the subject-matter, for the jury to consider (Morrill v. Wallace, 9 N. H. 111; Vincent v. Leland, 100 Mass. 432; Thorne v. McVeagh, 75 Ill. 81; Murray v. Smith, 4 Daly [N. Y.], 277); though, if the question is raised upon a written contract solely, the interpretation and effect of such contract is the province of the court, rather than the jury. Brown v. Bigelow, 10 Allen, 242; Parks v. Morris, etc., Co., 54 N. Y. (9 Sick.) 586; Merriam v. Field, 24 Wis. 640; Sparks v. Messick, 65 N. C. 440. See Stucley v. Bailey, 1 Hurl. & C. 405.

A warranty may be verbal, or in writing. Lindsay v. Davis, 30 Mo. 406. But if a representation is made in the course of a negotiation for a sale, and the contract of sale is afterward reduced to writing and signed, and does not contain the representation, it is excluded from the contract, and does not amount to a warranty. Randall v. Rhodes, 1 Curt. (C. C.) 90. Thus where the subject of sale was a ship, which has been verbally represented by the seller to be "copper-fastened," but the bill of sale of the ship contained no allegation of the kind, it was held that the oral representation constituted no warranty. Kain v. Old, 2 Barn. & C. 627. See, also, Pender v. Fobes, 1 Dev. & Bat. (N. C.) 250. And, in general, parol evidence is inadmissible to add a warranty to a written contract of sale, or to extend a warranty therein expressed. Rice v. Forsyth, 41 Md. 389; Ranger v. Hearne, 37 Tex. 30; Merriam v. Field, 24 Wis. 640. But the oral contract of warranty may be collected from the language and conduct of the parties at two or more interviews. Pinney v. Andrus, 41 Vt. 631. And the tones, looks, gestures, and the whole manner of the conversation, may be weighed by the jury in connection with the other surrounding circumstances of the transaction. Horton v. Green, 66 N. C. 596. So, an express warranty may be made out from parol words and acts followed by certain writings. Thus, where a sale of merchandise, with warranty, is made verbally upon credit, the quantity not being then ascertained, and the seller forwards a written bill of sale thereof, stating quantity and price only, and subsequently ships the goods to the buyer, the whole transaction becomes an executed contract of sale, with warranty, as of the time when the goods are shipped. Foot v. Bentley, 44 N. Y. (5 Hand) 166; S. C., 4 Am. Rep. 652. A warranty may be given by an agent as well as by the principal party himself. An agent authorized to sell goods is presumed to possess the power of warranting their quality and condition, unless the con

trary appear; and this whether the agency be general or special. Upton v. Suffolk County Mills, 11 Cush. 586; Boothby v. Scales, 27 Wis. 626; Randall v. Kehlor, 60 Me. 37; S. C., 11 Am. Rep. 169; Howard v. Sheward, L. R., 2 C. P. 148; Brady v. Todd, 9 C. B. (N. S.) 592. And it is not necessary that a warranty should be made directly to the vendee. A representation made to a stranger in respect to a sale, and by him communicated to a third person, so as to become the basis of a purchase by the latter from the party making the representation, is treated as if made directly by the vendor to the vendee. Crocker v. Lewis, 3 Sumn. (C. C.) 1. And see Hunt v. Moore, 2 Penn. St. 105; Bowers v. Johnson, 10 Sm. & M. (Miss.) 169; Gerhard v. Bates, 2 El. & Bl. 476.

The following instances will serve to illustrate the application of the foregoing rules and general principles. The use of the word "Haxall," in a sale note for flour, is a warranty that the flour was "Haxall." Bertram v. Lyon, 1 McAll. 53; Flint v. Lyon, 4 Cal. 17. So, the words "sold A 2,000 gallons prime quality winter oil," in a sale note, amount to a warranty that the article sold agrees with the description. Hastings v. Lovering, 2 Pick. 214. So, if wool sold in sacks be marked on the sacks and described in the invoice, by the authority of the seller, as being of a certain quality, there is a warranty by the seller that the wool is of that quality. Richmond Trading, etc., Co. v. Farquar, 8 Blackf. (Ind.) 89. See, also, Allan v. Lake, 18 Q. B. 560; Osgood v. Lewis, 2 Harr. & G. (Md.) 495; Goss v. Turner, 21 Vt. 437; Brown v. Bigelow, 10 Allen, 242. These cases establish the principle, that the description contained in a bill of parcels of goods sold is evidence of the terms of the contract of sale, and so imports a warranty that the goods are the goods described, and that they substantially agree with the terms of the description. See, also, Simond v. Braddon, 2 C. B. (N. S.) 324; Shepherd v. Kain, 5 B. & Ald. 240. An affirmation in a bill of sale, or a verbal affirmation at the time of sale that a jack is a good and sure foal-getter, is held to be a warranty. Lamme v. Gregg, 1 Metc. (Ky.) 444. And a statement made in good faith at the time of sale by the vendor, that seed is of a certain kind, such seed, with respect to kind, not being ascertainable by inspection, will lay a ground from which a jury or a court having power to pass upon facts may infer a warranty as to kind. Wolcott v. Mount, 38 N. J. Law, 496; S. C., 20 Am. Rep. 425. See, also, White v. Miller, 7 Hun (N. Y.), 427; Schutt v. Baker, 9 id. 556. In some of the cases, however, the whole doctrine of warranty, arising from a mere description of the article sold, is repudiated (See Carley v. Wilkins, 6 Barb. 557; Barrett v. Hall, 1 Aik. [Vt.] 269); while.