Where upon a sale of goods the vendor produces a sample and row, 2 C. & P 544; s. c. 4 Bing. 85, and 12 Moore, 266, per Hullock; B , in Henderson v. Barnewall, 1 Y. & J 394; but see Burrouqh, J., 12 Moore, 266.

(o) Pauli v. Simes, 6 C & P. 506.

(p) Hawes v. Forster, 1 Mo. & Rob. 368.

(q) Id.

(r) Davis v. Shields, 26 Wend. 341. In giving the opinion of the Court of Errors in this case, Walworth, Chancellor, says . " The broker's memorandum was fatally defective in not containing the real agreement between the parties, as well as in not being subscribed by the agent of Davis & Brooks. Although it is not necessary that both parties should subscribe the agreement, to make it obligatory upon the one who does subscribe the same, it is necessary that they should both assent to such agreement to make it binding upon either. Here Green was not the Broker of the buyer, who made his own contract. He was, therefore, the agent of the vendors merely; and if his name had been subscribed to the memorandum, which was never shown to Shields, it would not have made such a contract, which he had never assented to, binding upon him; nor even would it have been evidence of the acceptance of such a contract on the part of Shields , and without an acceptance on the part of Shields, it could not be binding on Davis & Brooks. The omission of the stipulated time of credit in the written memorandum, rendered the supposed agreement stated therein, wholly inoperative as to both parties; as to the purchaser, because he had not signed any such contract, or authorized any one to sign it for him, and as to the vendors, because he had never consented to accept such an agreement from them: and there being no contract which was binding upon either party at the time the parol agreement was made. Shields could not make it a valid agreement, as against the other party, by assenting to the written memorandum after the subject of the contract bad risen more than twenty-five per cent in value."

(s) Bold v Rayner, 1 M. & W. 343.

(t) Godts v. Rose, 17 C B. 229.

(u) Per Story, J., in The Reeside, 2 Sumn. 567.

represents the bulk as of equal quality, if there be sale notes which do not refer to the sample, it is not a sale by sample; for the writing is the only evidence of the contract. (v) But a warranty in the sale of a chattel is an essential part of the bargain, and should be stated in the bought and sold notes constituting the memorandum of sale; and it is held in New York, that the omission renders the contract void, and that parol evidence, in a suit for non-performance, is inadmissible to take the case out of the statute of frauds. (w) If the contract * has been executed in conformity with the written memorandum by which it is evidenced, it is clear that parol evidence of a warranty not mentioned in the writing, is not admissible in a suit brought by the purchaser, for damages for breach of warranty. (x)

When a broker does not disclose the name of his principal in his sold note [or within a reasonable time,] he [may be shown by parol evidence of a custom to be] liable as the purchaser; (y) and

(v) Meyer v. Everth, 4 Camp. 22; Van Ostrand v. Reed, 1 Wend. 424. But see Waring v. Mason, 18 Wend. 425. In this case there was a sale by sample of sundry bales of cotton, and a receipt of the goods by the purchaser. Upon opening the bales they were found packed in the interior with masses of damaged cotton. The purchaser sued for damages for breach of the warranty implied in the sale by sample , and the court held " that parol evidence of a sale by sample is admissible, although the broker who effected the sale made an entry thereof in his books without mentioning that it was a sale by sample; it not having been signed by the broker, and a bought and sold note not having been delivered by him to either of the parties." The contract being an executed one when the action was brought, there was no question as to the validity of the agreement under the statute of frauds. Pickering v Dowson, 4 Taunt. 779; Kain v. Old, 2 B. & C. 627; Cabot v. Winsor, 1 Allen, 546.

(w) Peltier v. Collins, 3 Wend. 459. The plaintiff in this case sued a purchaser for not fulfilling a contract for the purchase of rice, and the defendant resisted on the ground that the entry of the sale written in the vendor's book of sales, and signed by the broker who effected the sale, did not correspond with the bought note which the broker handed to him, in not including a guaranty of the quality. The court regarded the part omitted as one of the substantial terms of the contract, and held that its omission was fatal, because it left the actual contract without any written memorandum that would take it out of the statute of frauds. Upon this point, Marry, J., remarked, in giving the opinion of the court. " Suppose the contract had been with warranty, and the memorandum in the plaintiff's sales book had been signed by the defendant, but the warranty clause omitted, and suppose the rice had been delivered and had proved to be of inferior quality; could the defendant have shown the warranty by parol? The authorities to which I have referred show abundantly that he could not. Is the rule of proof different where the memorandum is subscribed by an agent 1 Most certainly not."

(x) Reed v. Wood, 9 Vt. 285; and see Marcy, J., quoted in the preceding note.

(y) Thomson v. Davenport, 9 B. & C. 78; Pennell v. Alexander, 3 E. & B. 77 Eng. C. L. 288; Humfrey v. Dale, 7 E. & B. 266. In this case the plaintiff era-ployed A, as a broker, to sell a quantity of oil, who negotiated with the defendant, another broker, by whom the oil was bought for a dealer in the article. The sold note, signed by the defendant and given to A, stated that the oil was sold by defendant for A, to defendant's " principal," without disclosing the name of the purchaser. A then sent a sold note to the plaintiff, stating that he had sold the oil to defendant for account of the plaintiff. By the terms as set forth in both of these notes, the oil was to be delivered within fourteen days of a day six months after the date of the sale. Before the six months elapsed the purchaser became insolvent. After the insolvency, on the day if he have a principal who is subsequently discovered, the other party may, upon the discovery, elect which of the two to hold. (z) If in such case the vendor sue the broker for non-performance of the contract, the sold note signed by the latter, stating that he has sold to his principal, will be sufficient evidence of the contract; for the statement of a sale to a principal, though unnamed, necessarily implies that he has bought for him. Indeed the word "principal" in that connection itself imports a buyer.(a)