Sale. Warranty. At the trial before a judge without a jury of an action of contract for loss alleged to have been sustained by an unwarranted refusal on the part of the defendant to receive and pay for certain shellac refuse, called "No. 2 keeri lac," which the defendant had agreed to purchase from the plaintiff, the defendant contended that the keeri lac was sold to him by sample, and that that tendered by the plaintiff was not of the quality of the sample. There was evidence tending to show that at the time of the sale neither the plaintiff nor the defendant knew much about the "No. 2 keeri lac," that after an interview between them the plaintiff sent to the defendant a type sample of what he understood "No 2 keeri lac" looked like, that then the defendant agreed in writing to purchase of the plaintiff a certain quantity of "No. 2 keeri lac (Shellac Refuse)" without further description, and that the plaintiff tendered to the defendant what answered to the general character of "No. 2 keeri lac;" and upon abundant evidence the judge found that there was no sale by sample, but that the "so called sample sent by the plaintiff to the defendant was simply intended to represent the general character of `No. 2 keeri.'" The finding was for the plaintiff; and the defendant alleged exceptions to the refusal of the judge to rule in accordance with his contention. Held, that on the facts as found by the judge the contention of the defendant was without foundation.
At the trial of an action for loss alleged to have been caused by an unwarranted refusal on the part of the defendant to receive and pay for certain shellac refuse called "No. 1 keeri lac," it appeared that the defendant agreed in writing with the plaintiff to purchase the merchandise under the description "No. 1 keeri lac" while it still was in India, that on its arrival in New York, in response to a request by the plaintiff that he examine it before shipment, the defendant asked the plaintiff to send him samples. Upon the plaintiff's doing so, the defendant refused the merchandise, asserting that it was not of the right quality. There was no question as to the good faith of the plaintiff in the selection of the samples. There was evidence that the merchandise offered answered the description, "No. 1 keeri lac." The judge found for the plaintiff. Held, that the finding was warranted.
BRALEY, J.
The sales were of two kinds of refuse gum, or shellac, which were to be used by the defendant in the manufacture of shellac varnish, but, not being carried in stock, they were to be purchased by the plaintiff and shipped to the buyer.
Having been sued for a breach of both contracts, the defendant contends as to the number two refuse, that it was sold by sample with an implied warranty that the bulk of the purchase should equal the sample not only in kind, but in quality, and that, the warranty having been broken, the plaintiff cannot recover. But the contracts, which, after verbal negotiations and letters between the parties were reduced to writing, having contained on the face of the writing no reference to such a stipulation, the goods must be deemed to have been sold only by description. Weston v. Barnicoat, 175 Mass. 454. Yet if no fixed standard as to the proportion, or uniformity of the ingredients of which they were composed appears to have been known to the trade, and the judge upon ample evidence found specifically that the specimen which the plaintiff sent to the defendant was not intended to represent a portion of the whole, but was only indicative of the general character of the article, the defendant was entitled to assume that when shipped the goods would be of the kind designated. Fullam v. Wright Colton Wire Cloth Co. 196 Mass. 474, 476. Putnam-Hooker Co. v. Hewins, 204 Mass. 426, 430.
If as to the other purchase, the defendant had the right before acceptance to a reasonable opportunity of examination, he did not avail himself of it when notified by the plaintiff of the arrival of the No. 1 keeri lac, with the request that he make a "dock examination" before delivery to the carrier, which by the terms of the contract would have passed title. Instead of making an inspection the defendant asked the plaintiff to act for him, and to draw and forward samples, but upon their receipt he refused to accept, claiming that the merchandise was not of the quality bought. The good faith of the plaintiff, and that the samples selected were fairly representative of the whole lot does not seem to have been questioned, and if their analysis as the defendant's chemist testified disclosed an unusually large percentage of rosin, yet the decisive question of fact common to both transactions was, whether the goods which were delivered and returned and those which were tendered and refused, conformed to the terms of sale. The judge's finding in favor of the plaintiff having been warranted by the evidence is conclusive upon this point, and the defendant's requests were rightly denied. American Malting Co. v. Souther Brewing Co. 194 Mass. 89.
Exceptions overruled.