The sale was made directly and clearly by sample, exhibited at a place where the bulk of the commodity was not present. Both at the commonlaw and under the Code it was a sale by sample in the strictest sense. ( C. C. § 1766; Benjamin on Sales, (Second American Ed.) § 648 and note z, 649 and note d, 650, 651, pp. 599-606; Polhemus v. Heiman , 45 Cal. 578, 579.)
The contract between the parties, and the warranty resulting therefrom, could not be varied by proof of any custom or usage among grain dealers in San Francisco. The proposal of the appellant was to prove an usage in the very teeth of his own agreement.
The fact that long after having purchased by sample, the respondent examined the hundred and ten tons of barley and received them, to no extent affects his right of recovery, even apart from the special circumstances disclosed by his testimony. He was perfectly authorized to rely upon the contract and warranty, and, when the breach was ascertained, to refuse to accept the barley, or to receive it and recover the damages he had suffered. (Benjamin on Sales (second American edition), § 894, p. 832; Polhemus v. Heiman , 45 Cal. 579, 580.)
OPINION The Court:
The exception upon which the appellant seems mainly to rely is to that portion of the charge in which the Court in effect told the jury: That where goods are sold by sample the law implies a warranty that the articles shall not be inferior in quality to the sample, and that if they are the purchaser may accept them and bring an action for the breach of warranty. Such we understand to be the law. (Polhemus v Heiman , 45 Cal. 573.)
The charge as to the measure of damages was in accordance with the rule contained in the Code. (C. C. 3313). Evidence of what the usage or custom in San Francisco was as to sales by sample, was properly rejected. (Polhemus v. Heiman , 50 Cal. 438, 441).
The instructions asked by the defendant contradicted those given and excepted to, and there was no error in refusing to give them.
There was some conflict in the evidence upon the main issue, and it appears to have been fairly submitted to the jury.
Judgment and order affirmed.