Gunther v. Atwell

Cochran, J., delivered the opinion of this Court: This is an appeal from a judgment obtained by the appellee, in a suit to recover damages resulting to him from the non-correspondence of two hogsheads of tobacco with samples by which he had purchased it from the appellants. At the trial below, the appellants reserved three exceptions, presenting the following questions: 1st, whether evidence showing a custom of tobacco dealers in Baltimore, of buying and selling tobacco in bulk, by samples prepared by the State inspectors, without insuring correspondence in quality, was admissible; 2nd, whether, in a sale of tobacco by a sample drawn by the State inspector, there is, in law, a warranty that the quality in bulk corresponds with the sample; and 3rd, whether, in the sale made, the bill of parcels designating the kind of tobacco sold as “heavy Glarlcsville tobacco,” amounts to a warranty of the quality. As the proposition presented by the 1st exception depends somewhat upon that involved in the 2nd, we shall, in our consideration of them, reverse the order in which they are stated. The determination of the question presented by the 2nd exception, upon the authority of adjudicated cases, is somewhat difficult.

The doctrine that a warranty of quality is implied, in a sale by sample, is not favored by the common law, and, at most, has a drifting and uncertain character. 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, ¹⁶⁸ goods of the same kind and quality as the sample. The identity of the goods sold in kind, condition and quality, with that of the sample is of the essence of the contract; and where the goods sold do not correspond with the sample, there would seem to be no performance of the contract. Young vs. Cole, 3 Bing.

N. C., 724. Mondel vs. Steele, 8 M. & W., 858, 871. 8 Pick., 250 . 13 Mass., 139 . Berine vs. Dord, 1 Seld., 93. Hargous vs. Stone, Ib., 73.

Waring vs. Mason, 18 Wend., 425 . 1 Smith’s L. Cases, 5th A. Ed., 256, 257, 258. The rule recognized in these cases, as governing sales by sample, seems to be founded on, or to be a simple application of the principle, that to fulfil a contract of sale, the seller must deliver that which he has agreed to sell, and that if he does not, the purchaser may rescind the contract, or receive the goods and claim a deduction for their relative inferiority in value. In order that this principle may be applied, it is necessary, in making the sale, that the sample should be so used between the buyer and seller, as to express or become a part of the- contract; or, in other words, that the-sample should amount to, and take the place of, an express averment by the seller of the condition and quality of the goods sold, upon which the buyer relies in making the purchase. The mere exhibition of a sample by the seller, and examination of it by the buyer, does not amount to such an averment, unless, from all the facts or circumstances in the -case, it can be presumed that an understanding is arrived at between the parties, that the bulk is to correspond with the sample. 1 Seld., 73, 93. 18 Wend., 425 , 434.

The reasonable deduction from these cases is, that to effect a sale by sánrplc, so as to bind the seller for a correspondence in bulk, it must bo shown thqt the seller adopts the sample as his own description of the bulk, and that the buyer concludes the purchase upon the faith and credit of the description so given. Upon this theory, it is obvious that in making ¹⁶⁹ sales, samples may be exhibited and examined without implying, as a part of the contract of sale, any obligation that the bulk shall correspond with the sample. In cases where both buyer and seller deal with a specific article or lot of merchandize by sample, and the buyer knows, or from the usage of the trade, or circumstances- in the base, is authorized to presume that the seller has no knowledge of the bulk, other than that afforded by an inspection of the sample, an obligation for a correspondence of the hulk, coaid not reasonably be implied as a part of the contract, for the buyer could not, in such a case, assume the exhibition or use of the sample to be a representation of quality by the seller. The fact that the seller’s ignorance of the quality of the bulk is known to tlxc buyer, is sufficient to put him on his guard, and enable lrim to protect himself by an actual inspection of the bulk, if tbat be possible, or by an express stipulation.

With a knowledge of the bulk equal to that of the seller, there would •seem to be but little or no reason for permitting the buyer to hold the seller, whom he knows to be ignorant of the .actual quality and condition of the hulk, as