§ 1327. Parol evidence.- Where the parties have reduced the terms of their contract to writing, which is silent as to the matter of sample, parol evidence is not admissible to show that the sale was made by sample;' though the rule is different, as has been already seen,2 where the writing does not purport to be the contract, but is a mere informal memorandum, such as a bill of parcels. Neither, it is said, does the rule apply where the contract is so vague, general or incomplete as to require reference to the sample to identify the subject-matter.

§ 1328. Extent of the warranty.- The warranty arising in these cases is that the bulk of the goods is fairly equal to the sample in nature, kind and quality, and if the bulk does so correspond the warranty is satisfied. Where the goods consist of many parcels or packages of perhaps uneven quality, but the sample is represented as having been taken proportionately from each package and to fairly represent the average quality of the whole mass, the warranty will be satisfied if the bulk formed by commingling the contents of all the packages would be equal in quality to the average sample so

made in reference to it." In Dickinson v. Gay, 7 Allen (Mass.), 29, 83 Am. Dec. 656, the court held that there was no implied warranty on the part of a dealer against latent and unknown defects in sample and bulk alike, and that usage was not competent to add one.

In Boorman v. Jenkins, 12 Wend. (N. Y.) 566, 27 Am. Dec. 158, the court held that usage was admissible to determine the character of the sale, e. g., that it was and must be regarded as a sale by sample; but this is clearly different from permitting usage to change the character of the sale as determined by the contract or the law.

1 Wiener v. Whipple, 53 Wis. 298, 10 N. W. R. 433, 40 Am. R. 775 (rely

ing on Meyer v. Everth, 4 Camp. 22; Gardiner v. Gray, 4 Camp. 144; Meres v. Ansell, 3 Wil. 275), followed in Harrison v. McCormick, 89 Cal. 327, 26 Pac. R. 830, 23 Am. St. R. 469, which cites also Thompson v. Libby, 34 Minn. 374.

2 See ante, § 1255.

Bradford v. Manly, 13 Mass. 139, 7 Am. Dec. 122; Atwater v. Clancy, 107 Mass. 369; Hazard v. Loring, 10 Cush. (Mass.) 267; Hogins v. Plymp ton, 11 Pick. (Mass.) 97; Stoops v. Smith, 100 Mass. 63, 1 Am. R. 85; Miller v. Stevens, 100 Mass. 518, 1 Am. R. 139, 97 Am. Dec. 123; Davis v. Bradley, 28 Vt. 118, 65 Am. Dec. 226; Waring v. Mason, 18 Wend. (N. Y.) 425.

4 See Stoups v. Smith, supra, and note in 97 Am. Dec. 76.

exhibited.

And it has been held that evidence is admissible of a custom to treat a sample of goods in several packages as being a sample of the average quality of the whole lot, and not of the average quality of each package.2

§ 1329.. The warranty being that the bulk is equal to the sample, if it is so the warranty is not broken, in the ordinary case, so far as a dealer, not the manufacturer, is concerned by secret defects which affect the bulk and the sample alike and were unknown to both parties; nor will a custom to hold the seller liable in such cases be enforced. But where the seiler is the manufacturer and the defect is one arising from the process of manufacture, then it is held that the sample must be considered free from any secret defect so arising from the process of manufacture though unknown to the seller as well as to the buyer.5

1 Leonard v. Fowler, 44 N. Y. 289. 2 Schnitzer v. Oriental Print Works, 114 Mass. 123.

3 Dickinson v. Gay, 7 Allen (Mass.), 29. 83 Am. Dec. 656; Bradford v. Manly, 13 Mass. 139, 7 Am. Dec. 122; Parkinson v. Lee, 2 East, 313; Sands v. Taylor, 5 Johns. (N. Y.) 395, 4 Am. Dec. 374.

4 Dickinson v. Gay, supra.

5 Drummond v. Van Ingen (1887), 12 App. Cas. 284. Here cloth merchants ordered of cloth manufacturers a quantity of worsted coatings which were to be in quality and weight equal to samples previously furnished by the manufacturers to the merchants. The object of the merchants, as the manufacturers knew, was to sell the cloth to clothiers or tailors. The cloth supplied corresponded in every particular with the samples, except that owing to a defect in manufacture they were unmerchantable for the purposes for which goods of that class

had previously been used in the trade. The same defect existed in the sam ples, but was latent and not discoverable upon the usual and ordinary inspection. Held, that there was an implied warranty that the goods should be fit for use in the manner in which goods of the same quality and general character would ordinarily be used. Mody v. Gregson, L. R. 4 Ex. 49, was approved. Lord Macnaghten, in his opinion, said: " As against the manufacturer I think it must be taken that the sample is free from all hidden defects of manufacture which would interfere with the proper use of the manufactured article. If the manufacturer supplies goods corresponding with the sample, but free from all such defects, he fulfills his bargain. If that is beyond his power, he must be responsible for undertaking more than he is able to perform." See also Jones v. Padgett, 24 Q. B. Div. 650. Heilbutt v. Hickson, L. R. 7 C. P.

§ 1330. -. And it would seem that the same responsibility might attach to a dealer where he has undertaken to supply articles for a particular use, notwithstanding the exhibition of a sample apparently but not really fulfilling the undertaking.

§ 1331. Co-existence of other warranties. Although where goods are sold by sample, other warranties, such as that of merchantability or fitness, are not usually implied, it is not impossible that they should exist when such appears to have been the intention of the parties. Thus, where a manufacturer sold goods by sample for a special purpose, the fact that the sale was by sample, and that the bulk corresponded with the sample, was held not to exclude the implied warranty that the bulk and sample were free from defects in manufacture

438, involved similar questions, then opened and contained paper. though the chief points decided re- The facts being communicated to the lated to the matter of damages. A seller, they wrote agreeing to take large quantity of army shoes had back all containing paper. Buyers been sold, as per sample, and a sam- thereupon took and paid for twelve ple shoe was deposited. A shipment thousand more pairs, which were was made, which, upon the usual in- also forwarded for acceptance by the spection, was approved. Rumors were French authorities. Here more shoes abroad that manufacturers were were cut open, and a very large profilling the soles of army shoes with portion were found to contain paper, paper. The buyers thereupon re- canvas shavings or roofing felt inquested that a shoe of those fur- stead of leather, and the French aunished should be cut open for exam- thorities rejected the whole quantity. ination. The seller's agent consented Held, that the letter of the defendthat as many pairs be opened as the ants must be treated as a new and buyers desired, assuring them that additional contract between the parno paper would be found. A shoe ties, adding fresh terms to the origwas cut open and found to be all inal contract with reference to the right. The buyers thereupon ac- difficulties that were likely to arise cepted five thousand pairs, paid for with the French authorities at Lille, them, and sent them forward to be and upon the proper construction of supplied under contract to the the whole contract, including the French army. Here a pair was cut letter, the plaintiffs were entitled to open, and found to contain paper. throw the shoes on the defendants' Others were examined and found to hands at Lille and at Fennings contain none. The sample shoe was wharf, and recover the price of them.

which rendered them unfit for the purpose contemplated;1 and the same result was reached where a latent defect in manufacture rendered both bulk and sample unmerchantable. So, also, where the goods were sold by both sample and description, it was held that they must not only be equal to the sample but must also be of the kind described.'

c. Genuineness.

§ 1332. Implied warranty of genuineness on sale of bonds, notes, etc. It has been seen in an earlier section that the seller of choses in action and other intangible personalty, like the seller of the tangible chattel, impliedly warrants his title to that which he so sells. He also, by the weight of authority, in the absence of anything showing a contrary intention, impliedly warrants that the bond, note, etc., which he sells is genuine, that is, that it is not a forgery but is a genuine instrument of the kind which it purports to be. He does not, however, warrant that it is valid in law, or that the maker is solvent, or that payment can be enforced."

1 Drummond v. Van Ingen, 12 App. Cas. 284, stated in the note to the preceding section. Thus on a sale, by sample, of canned lobster, there is an implied warranty that it is merchantable and fit for food. Leggett v. Young (1888), 29 New Bruns. 675. 2 Mody v. Gregson, L. R. 4 Exch. 49, where a manufacturer sold cloth to correspond to sample and to be of a given weight. The goods were like the sample, but a foreign substance called china clay had been introduced to bring the cloth to the specified weight, and this substance rendered the cloth unmerchantable. It was held that there was also an implied warranty of merchantability. 3 Gould v. Stein, 149 Mass. 570, 22 N. E. R. 47, 5 L. R. A. 213, 14 Am. St. R. 455, and Nichol v. Godts, 10 Exch.

191 (stated post in note to § 1333); Miamisburg Twine Co. v. Wolhuter (1899), 71 Minn. 484, 74 N. W. R. 175. 4 Otis v. Cullom (1875), 92 U. S. 447; Ware v. McCormack (1894), 96 Ky. 139, 28 S. W. R. 157, 959; Porter v. Bright (1876), 82 Pa. St. 441; Pugh v. Moore (1892), 44 La. Ann. 209, 10 S. R. 710; Meyer v. Richards (1895), 163 U. S. 385; Smith v. McNair (1877), 19 Kan. 330, 27 Am. R. 117; Smith v. Corege (1890), 53 Ark. 295; Watson v. Cheshire (1865), 18 Iowa, 202, 87 Am. Dec. 382; Strauss v. Hensey (1895), 7 D. C. App. 289, 36 L. R. A. 92.

5 Ruohs v. Third Nat. Bank (1894), 94 Tenn. 57, 28 S. W. R. 303; Richardson v. Marshall County (1898), 100 Tenn. 346, 45 S. W. R. 440; Meyer v. Richards (1895), 163 U. S. 385.

§ 1333. Sale by description -The English rule.- According to the prevailing rule in England, when the vendor sells goods by a particular description, it is a condition precedent to his right of action that the thing which he offers to deliver or has delivered should answer the description.1 Lord Abinger protested against the confusion which arises from the prevalent habit of treating such cases as 'warranty, saying: "A good