A. Whittaker & Co. v. Hueske , 29 Tex. 355 ( 1867 )

Willie, J.

It was decided by this court, in the case of Brantley v. Thomas, 22 Tex., 270, that in every sale of goods by sample there is an implied warranty that the goods delivered shall correspond with the sample. In accordance with this decision was the charge of the court below, as given at the request of the plaintiffs. But the second instruction, given at the instance of the defendant, so qualified the law as to hold, that if the sample was made by a warehouseman, who was indifferent between the parties, and both buyer and seller relied solely upon this sample, and there were no false or fraudulent representations on the part of the seller, the latter would not be liable.

We are unable to perceive upon what principle this distinction drawn by the court is based. If the liability of a seller by sample arises upon an implied warranty, beds answerable to the injured buyer, whether he knew that his warranty was false, and that the goods sold would not come up to his representations, or whether he was innocent of all knowledge of their defects. So proof of fraudulent representations on the part of the seller is necessary to •render him liable, where there is either an express or an implied warranty. hTor can we see how the fact that the sample was made by a warehouseman, instead of by the defendant himself, and that both parties relied upon that sample in making the trade, relieves the defendant from liability, especially under the circumstances of the present case. It is fully proved that it was customary for ware-housemen to make samples by which to sell cotton consigned to their keeping. It is also proved that the defendant stored the cotton with the warehousemen who made the sample- in the present case, and that he ratified and adopted the sample made, by receiving it from the ware-housemen, and exhibiting it to the plaintiffs as a correct indication of the quality of the cotton which he proposed to sell them. These facts were sufficient to render the warehousemen agents of the defendant in making the sample, and to make him liable for their acts in the premises. He was responsible for the quality of any cotton sold in this manner, no matter who originally took the sample from the bales in which the cotton was contained, and it was not the business of the purchaser to go and take another sample therefrom, in order to see whether the first one was fairly made. If such were - not the case, and the purchaser were bound, in every instance, to go and make a sample for himself, there would be but little practical use for the doctrine of implied warranty before stated. And where it was customary for the seller’s warehouseman to make the sample, and such custom was known to both parties, the vendor could never be made responsible upon any sale of this character.

We think there was error in the second instruction, given at the instance of the defendant, which may have influenced the jury in rendering their verdict, and for this error the judgment is reversed, and the cause

Remanded.