The progressive farmer. [volume] (Winston, N.C.) 1886-1904, 1892-11-22
BUYING AND SELLING BY SAM
PIE


goods by sample. We would say in re
ply that business enterprise and con-
venience have of late years greatly
magnified the Importance of buying
and selling by sample. Wholesale
dealers, on the one hand, no longer
wait for country merchants to come to
them and select their goods, but send
out, all over the land, agents with
samples of their stock in trade; and,
on the Othar hand, retailers in interior
towns find it to their advantage to
make their purchases in this way.
What are the legal rights and liabIli-
ties OF both parties to these transac
tions becomes, therefore, Of first con
sideratiOn
The mere showing of a sample is not
of itself an agreement TO sell by sample,
The exhibition of a samDIe st a sale,
amounts only to a representation that
such sample was taken from the bulk
of the lmmOdlty for sale in the usual
way. There must be an agreement to
sell by sample or at least an understand
ing of the parties that the sale is to be
go. This may be inferred from circun-
stances. Oral evidence is also com
monty admissible to prove it. but if the
contract is in writing, and nothing in
the writing indicates that a samOle was
used in making the sale, oral evidence
cannot be used to prove that it was
sale by sample. To illustrate: Where
written contract was for the sale and
delivery of my packing of sugar
corn, evidence of a prior verbal agree
ment that the corn was to oe like a Ger
tain sample was not allo we'd to be in
PRODUCED. So where the contract for
the sale of coal was in writing, and
mentioned the quality OF coal sold by
name, but did nO5 indicate that a sam
pie was used or referred to, oral evi-
dence was not permitted to be used to
show a sale by sample.
The sale of goods by sample contains
the implied contract that the goods sold
will conform to the sample. If, how
ever, the sample is fairly drawn from
the bulk Of the goods, and the bulk cor
responds with the sample, but there is
a defect in the bulk and in the sample
itself as part thereof, and this defect
is unknown and cannot be discovered
by examination, there is no implied
warranty against this defect, other
than what there would be If the sale
were not made by sample. But where,
in the absence Of a sample. warranty
of merchantable quality would be i'm
piled, sale by sample exc}ndes such
implied warranty only as to such
qualities as could be fairly judged Of
by the sample. An example OF this is
where a quantity ofgray shirting, sold
by sample, was TO weigh seven pounds
TO each piece; but it was after wards
found that the weight was made up by
Introducing into the fabric fifteen per
cent. Of China clay, and could not be
discovered by an ordinary examina
tiOn Of the sample, and which rendered
the goods understandable Where the
seller takes samples from different parts
or package from the same oulk, and
then mixes up these samples, so that
he may get an average sample, and
purchase is made by the buyer, under
standing this. there is no breach Of i'm
piled warranty of correspondence of
sample with bulk if some packages
are inferior to the sample. 1t is suff
Gent il the average quality Of the bulk
of the goods corresponds with the sam
pie. There is also no warranty that
the sample is what it appears to be.
Agents may, either expressly or i'm
pliedIy, be given authority TO sell by
sample, and in all cases where an
agent acts properly and within the
limits of his authority, his principal
will be bound in the same manner and
to the same extent as if he had acted
personally So, also, if an agent is in
vested with an Ostensibie authority
and credit is given to his representa-
tiOns and acts in respect thereto, his
principal will be bound. These rules
will undoubtedly cover the Case Of an
agent sent out on the road to sell goods
from samples, though he had no ex-
press written authority, or any author
l6y, to sell by sample, II he holds out
that he has, and purchases are made
Of him with that understanding. Like
wise q broker ordinarily has power to
cell by sample and to warrant CORES
pOndenCe of the bulk with the sam pie.
The question of acceptance may also
arise in case of sale by sample. The
acceptance and receipt Of the sample by
which the sale was made, may cOnstI-
tute an acceptance and receipt of a part
of the goods where such samples or part
are to be included in the measurement
or weight of the goods sold. The ac-
ceptanc9 and receipt of part OF the
goods bind both parties to the whole
bargain, subject, of course, to what
has already been said about the bal
ance of the goods ne ,es5ar1y CORE
spending with the sample, and takes
the CONTRACT of sale out of the statute
of friends in force in many of the
States. And an acceptance and part
payment for part of the goods suffi
clent in it's nature to bind the pur-
chaser, under the statute of frauds,
also binds the seller to deliver the bal
ance. But if the sample delivered is
only considered as specimen, forming
no part of the commodity, the delivery
and acceptance of the sample will nos
be sufficient TO have either of these
effects.
On q sale by sample, the buyer
acquiesces in the quality of the goods
by receiving them, and making no OBJ
lection. So where g person bought