In a sale by description there is (1) an implied warranty that the goods shall correspond with the description; (2) that the goods are merchantable when the seller deals in goods of that kind.
(1) What is sale by description.
A sale by description is a sale where the identification of the goods which are the subject matter of the bargain depends upon the description.33 It was seen heretofore that describing identified goods by a description is an express warranty that they are of that description. It has also been seen that the better rule is that in the sale of a specific article by a manufacturer or grower (or even a dealer in goods of that kind) there is a warranty of merchantability.
(2) Warranty that goods shall correspond with the description.
If one orders goods by description and they do not correspond with that description, he may treat the description as a condition with which the buyer has not complied or refuse to take them, or may receive them and sue upon his warranty.
Example p. A sale of "prime quality winter oil" is a warranty that the article sold is of that description.34
(3) Warranty in sales by description that the goods are merchantable.
If there is a sale by description and the seller is a manufacturer, there is a warranty that the goods are merchant 33. Williston on Sales, SEC. 224.
34. Hastings v. Levering, 2 Pick. (Mass.) 214; see also Gould v. Stern, 149 Mass. 570.
able. This has been denied to be the case where the seller is a mere dealer in goods of that kind, but it seems the better doctrine and is the doctrine of the sales act, that such a warranty extends not only to a manufacturer or grower but to a mere dealer who deals in goods of that kind.
Example 10. A, a dealer in coal, sold B coal. B defends that the coal is not merchantable. By the court: "This [the Sales Act] does away with the old distinction between sales by a manufacturer, on the one hand, and sales by a jobber or dealer, on the other hand, and affixes to every sale, as defendant contends, an implied warranty of merchantability." 35
On account of the fact that the doctrine that a warranty of merchantability does not apply as against a mere dealer has been applied so long and so strictly in some states, there will undoubtedly be an adherence to that doctrine where not changed by statute and possible even a narrow construction of the statute. But every consideration of justice points to a doctrine holding one though he be only a dealer to a warranty of merchantability of the goods he sells for the following reasons:
First: The dealer's customer may not know whether the dealer is manufacturer or not. Second: The dealer has chosen the manufacturer, and may have his remedy against him; Third: The consumer is remediless, unless he can make out a case of fraud or negligence against the manufacturer, for warranties do not extend to sub-purchasers; and if he can make cut a case in tort, he may have to sue one in a foreign state under such circumstances as to deny him even that remedy. For instance, there are cases holding that if an automobile wheel breaks down, the manufacturer of the car cannot be sued, if as to the wheel, he is a mere dealer.36 Such a doctrine would also permit evasion of liability by a manufacturer by organizing an incorporated selling company. There are other cases, however, which take the contrary view.37 By "merchantability" is meant freedom from unusual defects - the usual degree of soundness and serviceability.
35. Majestic Coal Co. v. W. J. Bush & Co., 171 N. Y. Suppl. 662.
In a sale by sample there is an implied warranty that the goods will correspond with the sample; if also by description as well as sample the goods must correspond also with the description; and also if the seller is a dealer in goods of that kind that such goods are merchantable.
If a sale is by sample, the goods must correspond with the sample; if a description is added they must measure up to the description, though the sample fall short thereof; and if the seller is also a manufacturer or dealer, the same comment is to be made here as in the foregoing section.
Every case in which a part of the bulk is shown, or something is supposed to be a representative of the bulk
36. Cadillac Motor Car Co. v. Johnson, 221 Fed. 801. (In this case the wheel was made of dead and "dozy" wood, and broke down while the car was going at moderate speed a short time after the car was purchased. The court held the Cadillac Co. not responsible because it was not a manufacturer of the wheel. Clearly such a doctrine is a denial of justice and shocks the lay, if not the legal, conscience.)
37. McPherson v. Buick Motor Co., 145 N. Y. Suppl. 462. (In this case and many similar cases, however, the right was not supported as arising out of warranty, but upon the question whether the manufacturer had exercised due care in selecting and testing the wheel. If the theory of warranty is adopted the amount of care exercised becomes immaterial.) is not a sale by sample. It must be the mutual understanding of the parties that the seller is in effect saying: the goods are like this. But if the circumstances are such that it can only be said that the seller was simply giving assistance to the buyer that he might form his own judgment, and there was no representation that the bulk would equal the part shown, as where the bulk was present and might conveniently be examined it is usually held there was no sale by sample.
The following cases illustrate this section.
Example II. B bought of D a quantity of blankets, which were wrapped up in bales, the sale being made in a warehouse. Several pairs were pulled out and exhibited, and found to be sound. B therefore purchased 27 bales. They were found to be largely moth eaten. Held, a question for the jury, whether the exhibition of the samples was intended as a representation of the condition of the others.38
Example 12. A bought a quantity of beans of B, upon B's exhibition of some of them. The sample was 3 per cent "buggy." The bulk was 51 per cent buggy and had to be destroyed. Held, a sale by sample.39