The law does not imply a warranty on the sale of ascertained goods, where the buyer has ample opportunity to inspect the thing to be sold, and the seller is neither the manufacturer or producer of the same. This is the application of the common law maxim of caveat emptor.24 In such a case in the absence of fraud on the part of the seller, the buyer purchases at his own risk.

An exception to the above rule exists in the case of the sale by sample. That is to say where the seller exhibits a specimen only of the goods to be sold for the purpose of showing the quality of the goods. This will be taken as a representation by the seller, that the sample is a fair representation of the quality of the bulk, and the seller will be bound as on an express warranty.25 It is, however, to be commonly treated as an implied warranty that the bulk is of the same quality, nature and kind as the sample.26

21 Hawkins vs. Pemberton, 51 N.

Y., 198,10 Am. R., 595. 22 Winow vs. Lombard, 18 Pick.

(Mass.,) 60.

23 Sweat vs. Shumway, 102 Mass., 365. 24 Parkinson vs. Lee, 2 East, 314.

To constitute a sale by sample, the parties must deal with each other on the basis, and understanding, that the bulk will correspond to the sample, and the buyer must rely on the representation so understood. The warranty is that the sample fairly represents the average quality of the whole mass.

* Bradford vs. Manly, 13 Mass., 139.

26 Hanson vs. Busse, 78 I11., 230.