L. A. Lockwood, Jr., Inc. v. E. Gross & Co.

The foregoing statement comprises the finding of facts made by the trial court, together with the modification and additions made after the disposition of the errors assigned upon the exceptions to the refusal to correct the finding as requested. Many of these requests to correct we find to be substantially well taken. We modify paragraphs four and fourteen and strike out paragraphs eighteen, twenty and twenty-one of the finding, and add to the finding part of paragraph ten and and paragraphs eleven, twenty-nine and thirty-five of the draft-finding. The modifications of, and additions to, the finding as made by the trial court, very materially change the case which we are called upon to decide.

The contract in suit covered the entire product of plaintiff's rags and paper-stock sweepings. Defendant concedes the plaintiff's claim that this was an entire and indivisible contract, upon the authority of Norrington v. Wright, 115 U.S. 188, 6 Sup. Ct. 12. The basis of the trial court's decision was its holding that the sale made was a sale by sample, that the deliveries under the contract were not of the quality shown by the sample, and hence the defendant was justified in refusing to accept shipments.

The Sales Act, § 16 (General Statutes, § 4682), provides: "In the case of a contract to sell or a sale by sample (a) there is an implied warranty that the bulk shall correspond with the sample in quality, (b) there is an implied warranty that the buyer shall have a reasonable opportunity of comparing the bulk with the sample, except so far as otherwise provided in section 4713. . . ." These provisions of this section of the Act reaffirm our law. Merriman v. Chapman, 32 Conn. 146,148. It is applicable alike to the contract of sale by sample whether it contemplates delivery in instalments at different times or at one time. To constitute a sale by sample, the contract, in the light of its surrounding circumstances, must show that the parties contracted with reference to a sample which was exhibited, and that they understood that they agreed that the bulk of the commodity which was the subject of the contract should correspond with it.

In Elliott's Connecticut Law of Sales, this rule is thus stated (p. 261): "In order to constitute a sale by sample, so as to raise an implied warranty of conformity between sample and bulk, (1) the seller must exhibit the sample as a specimen of the goods and standard of quality, and not merely as suggestive of their kind and quality; (2) the vendee must rely upon the sample to show the kind, quality and condition of the goods, and not upon his own judgment or upon an express warranty"; and cases cited. "The office of a sample is to present to the eye the real meaning and intention of the parties with regard to the subject-matter of the contract which, owing to the imperfection of language, it may be difficult or impossible to express in words. The sample speaks for itself. But it cannot be treated as saying more than such a sample would tell a merchant of the class to which the buyer belongs, using due care and diligence, and appealing to it in the ordinary way and with the knowledge possessed by merchants of the class at that time." Drummond Sons v. Van Ingen Co. (1887), L. R. 12 App. Cas. 284, 297; note to Ann. Cases, 1917C, p. 329. The fact of correspondence between the goods delivered and the sample is necessarily dependent upon the nature of the goods which are the subject of the contract. As applied to a definite and known object, correspondence would be a practical identity in quality between the goods delivered and the sample; while as applied to a subject-matter such as cotton-waste sweepings in the instant case, it would be a substantial conformity in quality. One of the best statements in the books of what constitutes a sale by sample, so as to make a vendor liable for failure to deliver goods corresponding to the sample, is Gunther v. Atwell, 19 Md. 157, 168, from which we quote: "In order that this principle may be applied, it is necessary, in making the sale, that the sample should be so used between the buyer and seller, as to express or become a part of the contract; . . . The mere exhibition of a sample by the seller, and examination of it by the buyer, does not amount to such an averment, unless, from all the facts or circumstances in the case, it can be presumed that an understanding is arrived at between the parties, that the bulk is to correspond with the sample; . . . The reasonable deduction from these cases is, that to effect a sale by sample, so as to bind the seller for a correspondence in bulk, it must be shown that the seller adopts the sample as his own description of the bulk, and that the buyer concludes the purchase upon the faith and credit of the description so given. Upon this theory, it is obvious that in making sales, samples may be exhibited and examined without implying, as a part of the contract of sale, any obligation that the bulk shall correspond with the sample." Henry Co. v. Talcott, 175 N.Y. 385, 391, 67 N.E. 617; In reNathan, 200 F. 379; Pickrell Craig Co. v. Wilson Wholesale Co., 169 N.C. 381,86 S.E. 187; note to Jorgensen v. Gessell Pressed Brick Co., Ann. Cas. 1917C, 329 (45 Utah, 31, 141 P. 460).

Williston on Sales, p. 344, points out in note 47 that the authorities adopt one of two views as to when a sale by sample will arise: one, "that the parties must have manifested an intention to contract that the bulk should be like the sample," of which viewGunther v. Atwell, 19 Md. 157, is a leading example; the other, "that an exhibition of a sample under circumstances which make it tantamount to a representation that the bulk of the goods is, or will be, equal to the sample, amounts to a warranty if a bargain is induced thereby," of which view Bradford v. Manly, 13 Mass. 139, is an example. Professor Williston maintains that the latter is the better view. We think the decided weight of authority is with the first-named view. If a representation, express or implied, is not made a part of the contract, we do not see how it can affect the sale, unless, indeed, it was a fraudulent representation.

We are, then, to examine the contract of sale made in this case in the light of its surrounding circumstances, to ascertain whether these parties did contract with the intention that the bulk of the sweepings sold should be in quality like the sample, that is substantially like it in quality. Since we have all of the subordinate facts before us, the conclusion as to whether the sale was a sale by sample or not, is one of law and reviewable. The written acceptance by plaintiff of defendant's offer on December 20th, as made to the New Bedford Company, said nothing about a sale by sample. In the telephone conversation of December 20th, preceding the sending of the acceptance of that date, the defendant requested plaintiff to send it a sample, but the plaintiff said it would send a sample but that the sweepings which were the subject of sale were a low grade of stock, and that it, the plaintiff, would not sell by sample. Here was a direct statement that plaintiff would not enter into a contract of sale by sample. Both the conversation and the letter of acceptance contemplated a more formal written contract called a "sale note." This the plaintiff signed and sent defendant January 2d 1920. Between the letter of acceptance and the return by defendant of this "sale note" signed, no further communication, so far as this record shows, took place between the parties relative to this sale. Nothing whatever, other than in this telephone conversation, had been communicated or claimed by defendant to plaintiff relative to a sale by sample. The sale note bearing date January 2d 1920, said nothing directly or by implication as to a sale by sample. All that it said as to quality was "As seen and agreed."

The plaintiff, shortly after December 20th, sent a twenty-five pound sample of these sweepings to defendant, as it had promised. The defendant had no right to infer from the sending of this sample that the plaintiff had reversed its position that it would not sell by sample. The sample was intended by the plaintiff merely as a representation as to the bulk of the sweepings contracted for. We have, then, a fully completed contract which under no possible construction could be held to be a contract of sale by sample. Once made, the contract cannot be changed to one of a sale by sample unless the parties mutually so agree. The finding clearly shows that the plaintiff never so agreed; on the contrary, it shows that it repeatedly and always denied having made a contract of sale by sample, and insisted at all times upon the maintenance of the contract as made and evidenced in the "sale note." The defendant on two occasions only between December 20th, 1919, and September 2d 1920, claimed that the sale was one by sample. Each of these claims met with a prompt and stout denial from the plaintiff. These claims were made in the letters of the defendant to the plaintiff on February 20th and May 5th. To the plaintiff's letter of August 4th saying: "But we never did and never would sell it by sample," the defendant replied, but did not controvert this statement.

Despite its claims made in the letters of February 20th and May 5th, that the contract was one of sale by sample, the defendant paid in full for all shipments made prior to June 1st, 1920, and although defendant had made this claim, it met the plaintiff's frequent demands for shipping instructions by repeatedly promising to furnish them, and on none of these occasions did it claim that the contract was a sale by sample, or claim that it was not an existing contract; and the last of these promises was in their letter of July 27th.

These considerations make it clear that the parties to the contract did not intend to, and did not, contract with reference to this sample, and that the contract was not one of a sale by sample at its making, or subsequently made such by the agreement or conduct of the parties to it.

If these facts did not require this conclusion, it would be necessary for us to determine whether or not the defendant, having had an opportunity to inspect plaintiff's stock of sweepings, could thereafter make a lawful claim of a sale by sample. Elliott on Connecticut Law of Sales, p. 262, says: "If before the sale the buyer inspects the goods, or has an opportunity to examine them, it is not a sale by sample."Salisbury v. Stainer, 19 Wend. (N.Y.) 159.

The plaintiff's offer to establish a custom or usage in the trade relative to sales of such goods by sample, was, we think, admissible as a circumstance tending to show that the parties did not so contract. Olesen v. Beckanstin, 93 Conn. 614, 618, 619, 107 A. 514;Kinney v. Horwitz, 93 Conn. 211, 215, 105 A. 438.

Since the case was disposed of upon the theory that it involved a sale by sample, we shall not attempt to pass upon the question of rescission, or the right of the defendant to refuse shipments upon this record.

There is error and a new trial is ordered.

In this opinion the other judges concurred.