1 Stevens v. Smith, 21 Vt. 90; Bluett v. Osborne, 1 Stark. 384.

2 Oneida Manuf. Co. v. Lawrence, 4 Cow. 444; Rose v. Beatie, 2 Nott & McCord, 538.

3 Mody v. Gregson, Law R. 4 Ex. 49 (1868).

§ 1073. Thirdly. Where goods are sold by sample, a warranty is implied that the bulk corresponds to the sample in nature and quality.1 It amounts to an affirmation that all of the goods are similar to those exhibited; and if they be not, the vendee may rescind the contract.2 But the mere exhibiting of a sample at the time of the sale will not, of itself, constitute a sale by sample, so as to subject the seller to liability on his implied warranty; because it may be exhibited merely to enable the buyer to form a judgment on its probable quality.3 Yet if the contract be connected by the circumstances of the sale with the sample, and refer to it, and it be shown as the inducement to the bargain, the sale will be a sale by sample.4 So, also, where a lot of goods in bales is sold, and no one is offered as a sample, and the purchaser, having the power to examine all the bales, only examines one, he cannot claim that the sale was by sample.6 If the goods sold consist of several varieties and qualities of the same article, and the sample is made by mixing proportioned parts of the different varieties and qualities, the warranty is that the whole quantity, if mingled together, would be of a quality equal to the sample; and the warranty would not be broken, although some of the packages are inferior to the sample, if it fairly represents the whole.1

1 See Brower v. Lewis, 19 Barb. 574. A sale may be shown to have been by sample, although the bought and sold notes are silent on the subject. O'Neill v. Bell, Irish Rep. 2 C. L. 68 (1866), following Syers v. Jonas, 2 Exch. I11.

2 Lorymer v. Smith, 1 B. & C. 1; 2 D. & R. 23; The Oneida Manuf. Co. v. Lawrence, 4 Cow. 440; Hibbert v. Shee, 1 Camp. 113; Parkinson v. Lee, 2 East, 314; Beebee v. Robert, 12 Wend. 413; Boorman v. Jenkins, 12 Wend. 566; Gallagher v. Waring, 9 Wend. 20; Williams v. Spafford, 8 Pick. 250; Bradford v. Manly, 13 Mass. 139; Magee v. Billingsley, 3 Ala. 679; Beirne v. Dord, 2 Sandf. 89.

2 See Beirne v. Dord, 2 Sand. 89; 1 Selden, 95; followed in Day v. Raguet, 14 Minn. 273 (1869); Hargous v. Stone, 1 Selden, 73. And where goods are sold by sample, and are delivered by the vendor, but the vendee on examination refuses to accept them on the ground that they do not correspond with the sample, the burden of proof as to whether they correspond with the sample or not, in a suit brought by the vendor for the price, is on the vendor and not on the vendee. Merriman v. Chapman, 32 Conn. 146 (1864).

4 Gardiner v. Gray, 4 Camp. 144; Brown on Sales, 472; Long on Sales, 192 (Rand's ed.); Meyer v. Everth, 4 Camp. 22.

5 Salisbury v. Stainer, 19 Wend. 159.

§ 1074. Fourthly. Upon an executory contract of sale, where goods are to be manufactured2 or to be procured for a particular use or purpose, a warranty will be implied3 that they are reasonably fit for such purpose or use, as far as goods of such a kind can be.4 But where the purchaser lives at a place distant from the manufacturer, a contract for a manufactured article is complied with, if an article of a suitable quality be delivered to the carrier for the purpose of being conveyed to the purchaser; and if it be deteriorated on the passage only to an extent to which it is necessarily subject in the transit, the purchaser is bound to accept the article.5 This warranty is only implied where the subject of the sale is either not in esse or is to be furnished to order by the seller, and where the seller has no opportunity to examine the article bought. Thus, where copper sheathing which the sellers were to manufacture was ordered for the purpose of sheathing a vessel, and it proved worthless, it was held that a warranty that the copper was fit for sheathing was implied.1 So, also, where the same article, after it was manufactured, was bought of a merchant who was not the manufacturer, but who undertook to supply it, the same warranty was implied.2 There is no distinction between the merchant who undertakes to procure goods in compliance with an order and the manufacturer who is to make them; for the manufacturer has it within his power to render the article fit for the stated purpose by the mode of manufacture, and the seller who undertakes to procure the articles has it in his power to procure those which are fit and proper; and, therefore, there is the same trust reposed in both, which they must take care not to violate.3 But no such rule applies to the case of a merchant who has bought the goods to sell again, if they be open to examination, and be not supplied for a particular purpose.1 For, where goods are not susceptible of examination, the buyer has a claim upon the seller, in consideration of the necessary trust reposed in him, which does not arise where the goods can be seen. So under a contract to supply goods of a specified description, which the buyer has no opportunity of inspecting, the goods must not only, in fact, answer the specific description, but must be salable or merchantable under that description. The maxim caveat emptor does not apply to a sale of goods where the buyer has no opportunity of inspection.2

1 Leonard v. Fowler, 44 N. Y. 289 (1871).

2 There is no implied warranty of quality in a sale of " slops from a distillery," though made for the purchaser; they are not manufactured articles within the meaning of the law. Holden v. Clancy, 58 Barb. 590 (1871).

3 But if a written contract contains no implied warranty that an article is fit for any special purpose, no such warranty can be added to it by parol. Whitmore v. South Boston Iron Co., 2 Allen, 52 (1861).

4 Jones v. Bright, 5 Bing. 533; 3 M. & P. 155; Beals v. Olmstead, 24 Vt. 114; Brenton v. Davis, 8 Blackf. 317; Gower v. Von Dedalzen, 3 Bing. N. C. 717; 4 Scott, 460; Gray v. Cox, 1 C. & P. 186; 4 B. & C. 108; Bluett v. Osborne, 1 Stark. 384; Gallagher v. Waring, 9 Wend. 20; Shepherd v. Pybus, 4 Scott, N. R. 434; Smith v. Marrable, 11 M. & W. 5; Freeman v. Clute, 3 Barb. 425; Park v. Morris Axe Co., 60 Barb. 140 (1871); Leopold v. Van Kirk, 27 Wis. 152 (1870); Boothby v. Scales, Ib. 626; Macfarlane v. Taylor, Law R. 1 H. L. Scotch, 245 (1868). In Howard v. Hoey, 23 Wend 350, the court distinguishes between executed and executory contracts of sale in respect to the implied warranty. And Bronson, Ch. J., says, " Where a contract is executory, or, in other words, to deliver an article not defined at the time, on a future day, whether the vendor have an article of the kind on hand, or it is afterwards to be procured or manufactured, the promisee cannot be compelled to put up satisfied with an inferior commodity. The contract always carries an obligation that it shall be at least merchantable, - at least of medium quality or goodness. If it come short of this, it may be returned, after the vendee has had a reasonable time to inspect it." See, also, Moses v. Mead, 1 Denio, 378, where this case is recognized.