44

tract. He cannot reject a shipment which complies with the requirements of the contract because he is dissatisfied with it on some other ground. Thus where one contracted in writing to buy an assortment of jewelry specifically described, and there was nothing in the contract requiring the goods to be salable in a particular place or that they should be low priced goods, the buyer cannot rescind on the ground that the jewelry delivered under the contract was too high priced for him to handle and would not sell in the neighborhood. And further, a buyer who means to stand upon his strict rights in this particular must be careful not to condone the delivery of defective or inferior articles. If, from time to time, he sorts out the inferior articles from a shipment and permits their replacement by articles of the required grade, this may create such a course of dealing between the parties as will oblige the buyer to continue in the practice of it and prevent him from afterwards repudiating the contract as a whole for inferiority of the goods furnished. The converse of the principal rule stated above is equally true. That is, if goods are contracted to be delivered in installments, and the first delivery is rejected and returned by the buyer as being defective, this constitutes such a breach of the contract as will give the seller a right to rescind.46

45

The case is somewhat different where a sale, made for a specified aggregate price, includes several different and unrelated articles, one or more of which are found to be defective or below the grade intended by the contract. An early case in Louisiana holds that if the articles included in the contract are independent of each other and do not form a whole, and are not increased in value by their union, the sale can be avoided only as to those found inferior or defective, and must be enforced as to the remainder. But there

is also some authority on the other side of the question.48

44 Main v. Procknow, 131 Wis. 279, 111 N. W. 508. 45 Whiting Foundry Equipment Co. v. Hirsch, 121 Ill. App. 373. 46 Ganser v. Weber, 35 Misc. Rep. 303, 71 N. Y. Supp. 773.

47 Ledoux v. Armor, 4 Rob. (La.) 381.

48 McCormick Harvesting Mach Co. v. Courtright, 54 Neb. 18, 74 N. W. 418.

§ 182. Sales by Sample.-When goods are sold by sample, there is an implied warranty on the part of the seller that the bulk of the property shall correspond with the sample, and shall be at least in the average of equal quality, kind, or grade with the specimen exhibited; and if, on delivery and inspection, they are found to be inferior to the sample, it is the privilege of the buyer, acting with reasonable promptness, to reject and return the goods and rescind the contract of purchase.49 It is further a condition of a sale by sample that the buyer shall be allowed to inspect the goods delivered in order to determine their correspondence with the sample, and if, for instance, delivery is made in a closed cask, box, or bale, and the vendor refuses to allow it to be opened, the purchaser cannot be required to accept the goods and pay the price.50 Also he must be allowed a reasonable length of time within which to make his. inspection, and even the destruction of the goods after delivery cannot deprive the buyer of the right of repudiating the contract, when a reasonable time for examination has not elapsed. But on the other hand, if he keeps the goods and uses them as his own, after time allowed for inspection, he cannot rescind the purchase, though he may maintain an action for breach of the implied warranty.52 But the warranty on a sale by sample extends no further than the assertion that the sample is fairly representative of the whole. "Every person who exhibits a sample of goods for sale impliedly represents or warrants that the sample has been fairly taken from the bulk of the commodity, and he

51

49 Magee v. Billingsley, 3 Ala. 679; Merriman v. Chapman, 32 Conn. 146; Borden v. Fine, 212 Mass. 425, 98 N. E. 1073; Whitmore v. South Boston Iron Co., 2 Allen (Mass.) 52; Lothrop v. Otis, 7 Allen (Mass.) 435; Columbia River Packers' Ass'n v. Springfield Grocer Co., 129 Mo. App. 132, 108 S. W. 113; Broderick v. Hartman, 141 Mo. App. 259, 124 S. W. 1060; American Art Metal Novelty Co. v. A. C. Bosselman & Co. (Sup.) 91 N. Y. Supp. 722; Waring v. Mason, 18 Wend. (N. Y.) 425; Leonard v. Fowler, 44 N. Y. 289; Boyd v. Wilson, 83 Pa. 319, 24 Am. Rep. 176; Azemar v. Casella, L. R. 2 C. P. 677; Parker v. Palmer, 4 B. & Ald. 387; Parkinson v. Lee, 2 East, 314.

50 Isherwood v. Whitmore, 11 Mees. & W. 347.

51 Magee v. Billingsley, 3 Ala. 679.

52 Magee v. Billingsley, 3 Ala. 679; Waring v. Mason, 18 Wend. (N. Y.) 425.

does no more than this. The purchaser takes the risk of all latent defects and infirmities inherent in the article and unknown to the seller, whether they arise from natural causes or fraudulent dealings with the goods by persons through whose hands they have passed." 58 The rule or maxim "caveat emptor," it is said, "applies even in the case of sales by sample, since the buyer may in such case protect himself by requiring a warranty that the goods to be delivered shall be the same as the sample exhibited." 54 Thus, this rule was applied to a case where a United States marshal sold a lot of tobacco by samples, the samples being good and undamaged but the tobacco as a whole being bad, where the whole was accessible for examination.55 But it has also been held that even an inspection and subsequent acceptance of goods bought by sample does not preclude the buyer from rescinding, when it appears that the defect or inferiority could not have been discovered by the inspection made.56

§ 183. Sale "With All Faults."-One who buys property "with all faults" cannot rescind on account of any defects or imperfections in the property existing at the time of the sale which do not destroy its identity, where there is no positive fraud or misrepresentation. It has been said that this phrase means "with all the faults which the article may have consistently with its being the thing described," and where a ship was advertised as a "copper fastened vessel, to be sold with all faults," and she was not so far copper fastened as to pass among ship-owners by that description, it was held that the vendor was liable for a breach of warranty, notwithstanding the reservation as to all faults. "The meaning of selling 'with all faults' is that the purchaser shall make use of his eyes and understanding to discover what faults there are; but I admit that the ven

53 2 Add. Torts (Wood's edn.) § 1194, citing Parkinson v. Lee, 2 East, 320; Omrod v. Huth, 14 Mees. & W. 663; Carter v. Crick, 4 Hurl. & N. 412; Mody v. Gregson, L. R. 4 Ex. 49. 54 Barnard v. Kellogg, 10 Wall. 383, 19 L. Ed. 987. 55 The Monte Allegre, 9 Wheat. 616, 6 L. Ed. 174.

56 Pennock v. Stygles, 54 Vt. 226.

57 Shepherd v. Kaine, 5 B. & Ald. 240.

dor is not to make use of any fraud or artifice to conceal a defect." 58 So, "a sale of a chattel to a purchaser 'with all faults' does not mean that the purchaser is to take it with all frauds. Such a stipulation therefore will not protect the vendor from an action for deceit, if he has resorted to any artifice to conceal a defect, or has made use of any false representation for the purpose of lulling to sleep the vigilance of the purchaser." 59

§ 184. Inspection or Testing to Determine Quality.A purchaser of a chattel always has the right to inspect or test it in order to ascertain its quality, and if it proves to be defective on being so tested, he is not deprived of his right to rescind the sale and return the article because the written contract provides that the article is "not placed on trial." " The test or trial should be fair and thorough, but need not extend to every article or item in a consignment when all are supposed to be alike. Thus, where telephones sold by defendant to plaintiff were admittedly all of the same quality, the buyer, on testing half of the telephones and finding that they would not work, was held entitled to rescind the contract for breach of warranty without testing the others.1 But where the purchase is not made until after an examination or inspection by the purchaser, supposing him to possess the knowledge of the subject which would enable him to make a correct estimate, he is considered to have acted on his own judgment, and cannot afterwards complain of defects. If the buyer, on delivery of a group or collection of articles, makes an inspection and rejects some of them

58 Pickering v. Dowson, 4 Taunt. 784, per Heath, J. And see Smith v. Andrews, 30 N. C. 6.

59 2 Add. Torts (Wood's edn.) § 1207.

60 Toledo Computing Scale Co. v. Fredericksen, 95 Neb. 689, 146 N. W. 957.

61 Chicago Telephone Supply Co. v. Marne & Elkhorn Telephone Co., 134 Iowa, 252, 111 N. W. 935.

62 Forsman v. Mace, 111 La. 28, 35 South. 372. A dealer who purchased fruit after an inspection thereof on the trees and whose agent superintended the packing cannot, even though he contracted for merchantable fruit only, rely on an inspection made at destination, and thus escape liability for the contract price on the ground that unmerchantable fruit was shipped. Golden v. White, 42 App. D. C. 39.

as defective or below grade, when in fact they all conform to the requirements of the contract, he will be answerable in damages to the seller; but the seller's right to rescind for such improper rejection will depend on the purchaser's good faith, the rule being that if the buyer's conduct in so rejecting was fraudulent, the seller may terminate the contract, but not so if it was done in good faith and by mistake. A contract by which the maker of machinery agrees to deliver and set up a piece of machinery of a specified capacity, to be determined by a test made after the machinery is in place, is executory, and may be rescinded by the purchaser if the test fails to show compliance with the contract. But where a machine is taken on trial, the buyer to pay for it if he likes it, he is bound to give it a fair trial, and cannot return it if he uses it for a whole season but without fairly testing it. "The trial was to ascertain whether defendant liked it, and not to ascertain whether it was equal to the recommendations. To this trial defendant was bound to bring honesty of purpose. Anything short of that would not determine his wishes fairly, but only his caprice or dishonorable design. To it he was not bound to bring any more capacity or judgment than he had, for he was only to ascertain his own wishes, and these could be measured by no judgment or capacity but his own. He was not to determine what would be the wishes of ordinary persons under like circumstances."

§ 185. Breach of Warranty.-Where property is sold with an express warranty of quality, grade, or capacity, and it is found that it does not fulfill the requirements of the contract, the courts have been very much divided in opinion upon the question whether this breach of warranty, by itself, will give the buyer the right to rescind and reject the article delivered, or whether he is restricted to his action for damages upon the covenant of warranty. The decisions

63 William Hanley Co. v. Combs, 48 Or. 409, 87 Pac. 143; P. Sheeran & Co. v. Russell & Hutcherson, 145 Ky. 223, 140 S. W. 195. 64 Smith v. York Mfg. Co., 58 N. J. Law, 242, 33 Atl. 244. And see Miller v. Layne & Bowler Co. (Tex. Civ. App.) 151 S. W. 341; Colean Mfg. Co. v. Blanchett, 16 N. D. 341, 113 N. W. 614.

65 Hartford Sorghum Co. v. Brush, 43 Vt. 528.