Virginian-pilot. (Norfolk, Va.) 1898-1911, 1900-09-05
COURT DECISIONS.
DIGESTED BY w. B. MARTIN
EXCLUSIVELY FOR
ViRcINIAN- PILoT.
Notes Of Cases Recently Decided
Which Are of Interest to
Our People.
IMPERIAL PORTRAIT co. v.
BRYAN.
Supreme Court of Georgia.
June Z, 1900.

Ute 4, lJUU.
THE MERE EXHIBITION OF A
SAMPLE WHEN A SALE OF
GOODS is MADE DOES NOT
Make 1T A SALE BY SAMPLE:
THERE MUST BE AN AGREE
MENT THAT THE GOODS ARE
TO BE LIKE THE SAMPLE.
WHEN THE CONTRACT is IN
WRITING AND CONTAINS No
REFERENCE TO A SAMPLE THE
SALE is NOT BY SAMPLE.
of the court
The court says:
Inc sole question in the case is
whether the presiding judge erred in
o ,Nn the certiorari. In our opin-
ION, he did. Giving to the testimony
OF the defendant its full weight, 1t
rams TO establish the fact that he
Dought the goods by sample. The i'm
pied warranty which arises from a
sale OF goods by sample Is that the
quality of the bulk is equal to that
or the sample. Mr.. Benjamin. in his
treatise on Sales (section $40, Bennet's
ith ED, says, on authority. that: 1T
must not be assumed that. in all cases
where Il sample is exhibited, the sale
Is q sale by sample. The vendor may
snow sample. but decline to sell by
IL, or the buyer may decline to trust
TO the sample and the implied war
ranty,"-and cites number of cases
to support the text. Mr.. Tiedeman, in
his work on Sales (section 1881, citing
number of authorities, says: I'm or
der that the implied warranty of cor
respondence of the bulk with tho sam
pie may be claimed, it must be O. veri-
table sale by sample. 1t is not suffi-
q l,n
must be exhibited with the intention
and understanding of the parties that
the seller assures the buyer that the
sample is reliable representative of
what the bulk OF the goods is. If the
facts Of the case do not support the
presumption that the seller intended to
warrant the correspondence of the
bulk with the sample. the mere pro-
duction OF the sample will not raise
the implication of the warranty" 1t
VIII be noted that the defendant him
self, in giving an account of the pur-
chase, said: Salesman exhibited
frames. made selection and signed
contract" Besides, the contract for
the purchase of the goods was in writ
ing; and 1T plainly appears by 1t that
the defendant ordered II frames, of as
sorted styles, of particular measure
ment. There was no reference in this
order. which contains certain terms of
colitruct, tnat tneSc frames were Dur-
chased by sample. There was no re-
ference OF any character from which
1T could be determined that the order
was otherwise than purchase of GER
tain frames therein described, and
among the conditions embraced in this
order is one declaring that there is
no other agreement, except what is
written or printed hereon." This or
der constituted contract to purchase.
1t gave the number the size, and the
style of the frames intended to be pur-
chased. 1t contained guaranty as
to the portraits which were to accom-
pany the frames. It gave the prices
and terms of payment. and purports
on it's face to be the full and entire
contract. Treating of sales by sample,
Mr.. Burdick further says: eff the
contract has been committed to writ
ing. and no reference is made to
sample, it is clear that conformity of
the bulk to the sample is not an
agreed term" We are of the opinion.
therefore, that the evidence OF the de-
PENDANT was of itself not sufficient to
show that the sale of the goods was
made by sample. and that the court
erred in overrulng the certiorari.
Judgment reversed.