(u) Ormrod v. Huth, 14 M. & W. 651.

(v) Parkinson v. Lee, 2 East, 314, is a very important case upon this subject, which has been much discussed, and sometimes doubted, but which, when properly understood, seems to be well supported by principle and analogy. It was a sale of five pockets of hops, with express warranty that the bulk answered the samples by which they were sold. The sale was in January, 1801; at that time the samples fairly answered to the commodity in bulk, and no defect was at that time perceptible to the buyer. In July following every pocket was found to have become unmerchantable and spoiled by heating, caused probably by the hops having been fraudulently watered by the grower, or some other person, before they were purchased by the defendant. The defendant knew nothing of this fact at the time of sale, and it was then impossible to detect it. It was held, that there was here no implied warranty that the bulk of the commodity was merchantable at the time of sale, although a merchantable price was given. - In Nichol v. Godts, 10 Exch 191, the plaintiff agreed to sell to the defendant a quantity of oil, described as foreign refined rape oil, but warranted only equal to samples; and having delivered oil which was not foreign refined oil, but which corresponded with the samples, it was held, that the defendant was not bound to accept the same, as he was entitled to the delivery of oil answering to the description of foreign refined rape oil, and that the statement in the contract as to samples related only to the quality of the oil.

(w) Willings v. Consequa, Pet. C. C. 301.

Pa. 242. As to a sample being free from any secret defect of manufacture not discoverable on inspection, and unknown to both parties, see Heilbutt v. Hickson, L. R. 7 C. P. 438; Drummond v. Van Ingen, 12 App. Cas. 284. If the goods sold by sample are delivered and accepted by the buyer, he cannot return them. Gaylord Manuf. Co. v. Allen, 53 N. Y. 515; Couston v. Chapman, L. R. 2 Sc. & D. App. 250. If the goods are sold by an average sample, it is only necessary that all the goods sold when mixed together be equal to such sample Leonard v. Fowler, 44 N. Y. 289; Schnitzer v. Oriental Works, 114 Mass. 123. Grimoldby v. Wells, L. R. 10 C. P. 391, held that where the bulk of goods sold by sample are found by the purchaser on inspection after delivery not to be equal to the sample, he may reject the goods by giving notice to the vendor that he would not accept them, and that they are at vendor's risk, and Deed not send or offer to send them back or place them in neutral custody. - K.

1 Unless he is the manufacturer or grower. Heilbutt v, Hickson, L. R. 7 C. P 438 Drummond v. Van Ingen, 12 App. Cas. 284. In Pennsylvania a sale by sample implies a warranty only to the extent that the goods shall correspond to the sample in kind, and be merchantable goods of that kind: so that, if the sample were sound and undamaged and the goods unsound and damaged, no action could be maintained by the vendee if the goods were merchantable and of the same kind as the sample Selser v. Roberts, 105 Pa. 242.

2 In the case of a sale of unspecified goods by sample or description, there can be no doubt that the buyer may refuse to take the goods when offered unless they correspond to the sample or description. Bowes v. Shand, 2 App. Cas 455; Re Arbitration between Green and Balfour, 63 L. T. Rep. 97; Fogel v. Brubaker, 122 Pa, 7 , and that the sale must be on examination of the goods, there is no warranty, although he chooses to make no examination, and trusts to the samples. (ww)

Evidence of usage has been refused, when offered as to warranty by sample,(x) and as to warranty in general; (y) but this cannot be a universal rule. Indeed, we should admit it only when the evidence was itself objectionable, or the usage to be proved was insufficient. (z)

If a thing be ordered of the manufacturer for a special purpose, and it be supplied and sold for that purpose, there is an implied warranty that it is fit for that purpose. (a)1 This prin(ww) Kellogg v. Barnard, 6 Blatch. 279, and Barnard v. Kellogg, 10 Wallace, 383.

(x) Beirne v. Dord, 1 Seld. 95.

(y) Wetherill v. Neilson, 20 Penn. St. 448' '

(z) Carter v. Crick, 4 H. & N. 412; Atwater v. Clancy, 107 Mass 369; Jones v. Wasson, 3 Baxter, 211; Graff v. Foster, 67 Mo. 512. Re arbitration between Green v. Balfour, 63 L. T. Rep. 97.

(a) Beals v. Olmstead, 24 Vt. 114;

Jones v. Bright, 5 Bing 533, is the leading English case on the subject. There the defendant was a manufacturer and vendor of copper. The plaintiff applied to him "for copper for sheathing a vessel." The defendant said: "I will supply you. well." From the defendant's warehouse the plaintiff's agent then selected such copper as was wanted, and applied it to the plaintiff's vessel. It proved to be very defective, and lasted only about four months, in place of four years, the usual cases infra. Indeed many cases hold that in such case the buyer must reject the goods when opportunity for inspection is first had, and that failing to do this he has no right of action for damages. Mackey v, Swartz, 60 Ia. 710; Haase v. Nonne-macher, 21 Minn. 486; Thompson v. Libby, 35 Minn 443; Reed v. Randall, 29 N. Y. 358, 368; McCormick v. Sarson, 45 N. Y. 265; Dutchess Co. v. Harding, 49 N. Y. 321; Coplay Iron Co. v. Pope, 108 N. Y. 232; Studer v Bleistein, 115 N, Y. 316 , Meagley v Hoyt, 125 N, Y. 771, Gilson v. Bingham, 43 Vt 410; Barton v. Kane, 17 Wis. 37. If these decisions are sound it would seem accurate to say that an executory sale by sample or description is subject to an implied condition rather than that it is accompanied by an implied warranty. It seems admitted, however, where, as in the case of drugs, an examination of the goods may involve their destruction, that an action lies for breach of warranty if they prove inferior, though not rejected. It was so held in regard to drugs in Jones v. George, 61 Tex. 345. In regard to seeds, in Shaw v. Smith, 45 Kan. 334; White v. Miller, 71 N. Y. 118; conf. Shisler v Baxter, 109 Pa. 443. So in regard to railway frogs which broke from latent defects. Gurnev v, Atlantic Ry, Co. 58 N. Y. 358. And certainly if it is so intended there may be in any executory sale a true warranty which may be sued on if broken, though after inspection the goods have not been rejected. Day v. Pool, 52 N. Y, 416; Briggs v. Hilton, 99 N. Y 517; Kent v. Friedman, 101 N. Y 616; Zabriskie v. Central Vt. R. R. Co., 131 N. Y, 72; Dayton v. Hooglund, 39 Ohio St. 671. And according to the better view a contract to sell goods like a certain sample or of a certain description implies not merely a condition, but also a promise that they shall correspond to the sample or description, and this promise may be enforced though the goods are retained after inspection. Weed v. Dyer, 53 Ark 155; Forcheimer v. Stewart, 65 Ia. 593; Morse v Moore, 83 Me. 473; Gould v. Stein, 149 Mass. 570; Hollowav v. Jacoby, 120 Pa 583; Wolcott v. Mount, 36 N. J L. 262, 266; Eastern Ice Co. v King, 86 Va 97. See also R B Gage Mfg. Co. v. Woodward, 23 At. Rep. 16 (R. I.) If the bargain relates to specific goods, there will ordinarily be an executed sale at once, and the buyer's remedy is by action for damages. Hevworth v. Hutchinson, L. R. 2 Q B 447; Underwood v. Wolf, 131 Ill 425; Conf. Azemar v. Cassella, L. R 2 C. P. 431. See Wiley v Athol, 150 Mass. 426, 434. Also p *582, n. (o) ante.