Sale. Words, "Sample." Where one agrees to buy a stipulated amount of a kind of coal called "river anthracite" from a dealer who tells him that he buys this kind of coal from men who dredge it from a river and that he sells it as he buys it, and the seller exhibits to the buyer a specimen of river anthracite, saying that it may run a little better or a little worse than the specimen, and on the next day the seller writes to the buyer that he is sending by express a sample of the river anthracite coal, saying "it may run a little better, or a little worse, we take it as we get it and so ship it," and afterwards writes "the sample sent you is about an average, you may judge from it the percentage of sticks, stones, etc. in it," the sale can be found not to be a sale by sample, so that, although the coal delivered is inferior to the specimen exhibited or to that afterwards sent, if it is river anthracite and is merchantable the seller can recover the agreed price; and a statute of another State where the sale was made relating to sales by sample does not apply to the transaction.
Where a buyer has ordered merchandise which is to be shipped to him by rail, and the seller delivers the merchandise on board the cars at the shipping point consigned to the buyer as directed, the title passes and the buyer owes to the seller the price agreed upon.
LORING, J.
1. We are of opinion that on the facts stated in his report the master cannot be held to be wrong in finding as a fact that the sale was not a sale by sample. The specimen shown the defendant's agent Ellicutt, on September 26, was not called a sample by the plaintiff; and, although that sent to the defendant by express on September 27 was spoken of in the plaintiff's letter as a sample, that did not prevent the master from finding that the sale made was a sale of the coal as the plaintiff received it from the dredgers, whether better or worse than the specimens. See in this connection Weston v. Barnicoat, 175 Mass. 454. For this reason the statute of Pennsylvania enacted April 13, 1887, relative to sales by sample, does not apply.
2. The master found that the coal shipped answered the description of the coal which the defendant agreed to buy and pay for. When the plaintiff delivered this coal at his own expense on board the cars at the shipping point near Harrisburg, consigned to the defendant as directed, he had done all he was required to do to entitle himself to the contract price. The title passed to the defendant, and he owed the plaintiff the price agreed upon. See Dr. A.P. Sawyer Medicine Co. v. Johnson, 178 Mass. 374.
Decree affirmed.