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sale, warranty, am and dec

SAMPLE. A small quantity of any com modity or merchandise, exhibited as a speci men of a larger quantity called the bulk.

A part shown as a specimen. "Webber v. Com., 33 Grath (Va.) 909.

When a sale is made by sample, the ven dor warrants the quality of the bulk to be equal to that of the sample ; Benj. Sales 648 ; and if it afterwards turn out that the bulk does not correspond with the sample, the purchaser is not, in general, bound to *take the property on a compensation being made to him for the difference ; 1 Camp. 113, See Sands v. Taylor, 5 Johns. (N. Y.) 395, 4 Am. Dec. 374; Borrekins v. Bevan, 3 Rawle (Pa.) 37, 23 Am. Dec. 85 ; 14 M. & W. 651. It is held that the vendor does not warrant goods, as fit for a particular purpose; Kauff man Milling Co. v. Stuckey, 37 S. C. 7, 16 S. E. 192.

To constitute a sale by "sample," the con tract must be made solely with reference to the sample ; Bradford v. Manly, 13 Mass. 139, 7 Am. Dec. 122. Not every sale where a sam ple is shown is a sale by sample ; there must be an understanding, expressed or implied, that the sale is by sample; Barnard v. Kel logg, 10 Wall. (U. S.) 383, 19 L. Ed. 987; Gunther v. Atwell, 19 Md. 157. The mere ex hibition of a sample is but a representation that it has been fairly taken from the full; Hargous v. Stone, 5 N. Y. 73. In Pennsyl vania it has been held that in the absence of fraud or representation as to the quality, a sale by sample is not in itself a warranty of the quality of the goods, but simply a guar anty that the goods shall be similar in kind and merchantable ; Boyd v. Wilson, 83 Pa.

319, 2.t Am. Rep. 176 ; but the rule was changed by statute in 1887, the decision hav ing been unsatisfactory to the profession and the public.

Although goods sold by sample are not in general deemed to be sold with an implied warranty that they were merchantable, the facts and circumstances may justify the in ference that this implied warranty is super added to the contract ; L. R. 4 Ex. 49. If a manufacturer agrees to furnish goods ac cording to sample, the sample is to be con sidered as if free from any secret defect of manufacture not discoverable on inspection, and unknown to both parties ; L. R. 7 C. P. 438 ; but if the sale is made by a merchant, who is not a manufacturer, there is no im plied warranty against secret defects ; Dick inson v. Gay, 7 Allen (Mass.) 29, 83 Am. Dec. 656. It is an implied condition in a sale by sample that the buyer shall have a fair op portunity of comparing the bulk with the sample, and an improper refusal by the ven dor to allow this will justify the buyer in rejecting the contract; 1 B. & C. 1. See Benj. Sales 649 ; SALES; WARRANTY.