Sec 914

When there is a sale by sample, goods delivered must correspond with the sample, and if they do not, they may be returned by the purchaser.6 But beyond this the implied warranty on a sale by sample does not go. If the goods correspond with the sample, it is not necessary that they should have specific merchantable qualities.7 A warranty by sample, however, may be so framed as to include quantity as well as quality.8 - As is elsewhere shown, on a sale by sample the purchaser should have the means of inspection and examination.9 domestic use must be fit.

Conditions imposed by local law must be complied with.

On sale by sample article most conform to sample.

1 Supra, sec 222; Emmerton V. Matthews, 7 H. & X. 586; Smith V. Baker, 40 L. T. 261; Burnby V. Bollett, 16 M. & W. 644. As to fraud in warranty, see supra, sec 263.

2 Story on Cont. sec 1078, citing Win-sor V. Lombard, 18 Pick. 57; Moses V. Mead, 1 Denio, 378; supra, sec 222.

3 Elkins V. Parkhurst, 17 Vt. 105.

4 Clark V. Pinney, 7 Cow. 681; 2 Pars. on Cont. 656.

5 Wh. Con. of L. sec 334 et seq. See supra, sec 299.

6 Supra, sec 225; Benj. on Sales, 3d Am. ed. sec 648; Leake, 2d ed. 408; Hibbert V. Shee, 1 Camp. 113; Wells V. Hopkins, 5 M. & W. 7; Lorymer V. Smith, 1 B. & C. 1; Nichol V. Godts, 10 Ex. 191; Bradford V. Manly, 13.

Mass. 139; Lothrop V. Otis, 7 Allen, 435; Oneida Man. Co. V. Lawrence, 4 Cow. 440; Boorman V. Jenkins, 12 Wend. 566; Moses V. Mead, 1 Denio, 378; Borrekins V. Bevan, 3 Rawle, 23; Maute V. Gross, 56 Penn. St. 250; Boyd V. Wilson, 83 Penn. St. 314; Magee V. Billingsby, 3 Ala. 679.

7 Ibid; Parkinson V. Lee, 2 East, 314; Mody V. Greyson, L. R. 4 Ex. 49; Dickson V. Zizinia, 10 C. B. 602; Beirne V. Dord, 1 Selden, 95; Cousinery V. Pear-sail, 40 N. Y. S. C. 113; Boyd V. Wilson, 83 Penn. St. 319; see other cases, supra, sec 225.

8 Azemar V. Casella, L. R. 2 C. P. 677.

9 Supra, sec 585; infra, sec 915.

Sec 915

The mere exhibition of a sample does not make a sale by sample. The purchaser may waive the test by sample and require an express warranty,1 or fall back on his own personal inspection;2 or the sample may be expressly stated by the vendor not to be given as a standard, and the purchaser may be notified to purchase at his own risk;3 or the purchaser may not examine the sample, but rely on his own inspection.4 In no one of these cases is the sale by sample. sec 916. "When goods are sold by sample, or when they are sold as answering a particular description, the delivery must be such as to enable the purchaser to see whether the goods correspond with the description or the sample, as the case may be.5 Hence the purchaser is not bound to accept goods in a closed cask which the vendor declines to open;6 nor where the vendor refuses to permit him to select the goods bought out of a larger quantity which the vendor has sent him;7 nor where the vendor refuses to permit a comparison of the bulk with the sample;8 nor where the inspection is made ineffectual by the vendor's default.9 Not only when he is refused inspection, but when on inspection he finds the goods do not correspond with the sample, is the purchaser entitled to reject them.10 If the vendor refuses to resume the goods, they may be sold by the purchaser at the vendor's risk.1 The burden of proving correspondence in such cases is on the vendor.2

Showing sample is not necessarily selling by sample.

On sale by sample or description purchaser must have opportunity of inspection.

1 Tye V. Fynmore, 3 Camp. 462.

2 Barnard ». Kellogg, 10 Wall. 383.

3 Powell V. Horton, 2 Bing. N. C. 668; Gardiner V. Gray, 4 Camp. 144; Kellogg V. Barnard, 6 Blatch. 279; 10 Wall. 383; Graff V. Foster, 67 Mo. 512; see Russell V. Nicolopulo, 8 C. B. N. S. 362; Heilbutt V. Hickson, L. R. 7 C. P. 438; Oneida Man. Co. V. Lawrence, 4 Cow. 440; Beirne V. Dord, 2 Sandf. 89; 1 Selden, 95; Day V. Ra-guet, 14 Minn. 273.

4 Salisbury V. Stainer, 19 Wend. 159.

5 Supra, sec 565; Benj. on Sales, 3d Am. ed. sec 594, 648, 695, 701, 896; Leake, 2d ed. 827; Lorymer V. Smith,.

1 B. & C. 1; Isherwood V. Whitmore,.

11 M. & W. 347.

6 Isherwood V. Whitmore, ut supra.

7 Benj. on Sales, 2d Am. ed. sec 701; Dixon V. Fletcher, 3 M. & W. 146; Hart V. Mills, 15 If. & W. 85; Nicholson V. Bradfield Union, L. R. 1 Q. B. 620.

8 Toulmin V. Headley, 2 C. & K. 157; Lorymer V. Smith, 1 B. & C. 1.

9 Heilbutt V. Hickson, L. R. 7 C. P. 438.

10 Heilbutt V. Hickson, L. R. 7 C. P. 438; Couston V. Chapman, L. R. 2 So. Ap. 250; Grimoldby V. Wells, L. R. 10 C. P. 391; Park V. Tool Co., 4 Lansing, 103.