11. Goods to be manufactured.—When a contract is made for goods to be manufactured, a presumption arises that title is not to pass until the goods are ready for delivery. This presumption obtains even when the whole of the purchase price is paid at once, or when the buyer exercises a superintendence or control over the work. In some cases it is held that title does not pass until acceptance by the buyer of the manu factured article, but by the weight of authority it passes when the article is put in a deliverable condi tion.
It must always be remembered, in this connection, that there is a difference between an actual sale and a mere executory agreement to sell. In the case of an actual sale, the title to the thing sold passes at once to the buyer (this is the general rule) as soon as the con tract is concluded, whether the goods be delivered to the buyer or remain in the possession of the seller. In an agreement to sell, the property does not pass when the contract is made; the goods remain the prop erty of the seller until the contract is executed.
12. Sales by sample.—In the case of a contract for sale by sample there is an implied condition that the bulk shall correspond in quality with the sample; that the buyer shall have a reasonable opportunity of com paring the bulk with the sample; and that the goods shall be free from any defect rendering them um merchantable, which would not be apparent on rea sonable examination of the sample. These rules are based upon jurisprudence, and may be taken to be generally applicable.
The title in goods sold by sample will pass when the goods are put in a deliverable condition, and are ap propriated to the contract. The mere fact that a sample is exhibited does not make the sale a sale by sample. The sample may be shown, but the seller may refuse to sell by it, and it may be agreed that the buyer shall inspect the whole at his own risk.
On the other hand, the buyer may be unwilling to trust to the sample, and may demand an express con dition or warranty. This follows from the rule that a contract for sale by sample must be express or im plied. It may be shown that the sale was a sale by description and not by sample. For example, where the seller accepted a sale of sassafras wood and the buyer inspected it, and he was experienced in buy ing such wood, but the seller described the goods in the contract as "fair merchantable sassafras wood," the seller was held bound to deliver fair merchantable sassafras wood, as the goods had been sold upon this description and not upon the sample.
In an American case decided by the Court of Ap peals of the State of New York,' an average sample was taken of a large quantity of beans contained in a • number of packages, by drawing samples from all the packages and mixing them together, it was held that the purchaser could not reject any of the pack ages on the ground that they were inferior to the aver age, nor recover for the difference in value on that ground. It was laid down that the true test was, provided that the contents of all the packages de livered were mixed together, whether the quality of the bulk so formed was equal to that of the average sample drawn.
An interesting case was decided by the Supreme Court of the United States in A commission merchant in Boston instructed his brokers to sell a quantity of foreign wool received, but only in case the purchaser came to Boston and examined the wool for himself. The broker sent the prospective pur chasers at their request samples of the wool, as a re sult of which the latter were to make an offer of fifteen cents a pound, all round, if the goods were equal to the sample furnished. This offer was accepted, with the proviso, however, that the purchasers would examine the wool on the following Monday, and should on that day declare whether they would take it or not. The purchasers went to Boston and examined four bales, as fully as they wished, and were informed that they could examine the remaining bales or have them opened for inspection. This they declined. The goods were bought, and later, when they were opened by the purchasers, it was found that some of the bales had in the middle of them a quantity of rotten and damaged wool, concealed by the outer layers which were in good condition. The purchasers brought action to recover for their loss. The good faith of the seller was not doubted. The action was based upon the following grounds: that the sale was a sale by sample, and that there was a prom ise express or implied that the bales should not be falsely packed. The first court held that there was no express warranty that the bales which were not ex amined should be up to the standard of those which were examined, but that by the custom of merchants and dealers in foreign wools in Boston, there was an implied warranty that the goods were of the same quality thruout, in view of the fact that to examine each bale separately would be a work of great length and practically an impossibility; and that, as a result, this warranty arising out of custom was binding on the seller. In the Supreme Court, however, this de cision was set aside on the following grounds: (1) that as the purchasers had gone to Boston to inspect the goods for themselves, the sale could not be said to be a sale by sample; the purchasers had in reality had an opportunity to examine the goods, and must he held to have assented that the sale should take place after such examination as was made; (2) that by the rule of the common law, where a purchaser inspects for himself the specific goods sold, and there is no ex press warranty and no fraud on the part of the seller, who is not the manufacturer nor the grower of the goods sold, the maxim caveat emptor—let the buyer beware—applies, and (3) that as by law no warranty is implied under the circumstances, it is not permis sible to make evidence that by custom such a warranty is implied. This is especially true in this case as it was not shown that the parties had any knowledge of the custom, and therefore were not transacting with a knowledge thereof.1