207 Mass. 86 | Mass. | 1910
The sales were of two kinds of refuse gum, or
Having been sued for a breach of both contracts, the defendant contends as to the number two refuse, that it was sold by sample with an implied warranty that the bulk of the purchase should equal the sample not only in kind, but in quality, and that, the warranty having been broken, the plaintiff cannot recover. But the contracts, which, after verbal negotiations and letters between the parties were reduced to writing, having contained on the face of the writing no reference to such a stipulation, the goods must be deemed to have been sold only by description. Weston v. Barnicoat, 175 Mass. 454. Yet if no fixed standard as to the proportion, or uniformity of the ingredients of which they were composed appears to have been known to the trade, and the judge upon ample evidence found specifically that the specimen which the plaintiff sent to the defendant was not intended to represent a portion of the whole, but was only indicative of the general character of the article, the defendant was entitled to assume that when shipped the goods would be of the kind designated. Fullam v. Wright & Colton Wire Cloth Co. 196 Mass. 474, 476. Putnam-Hooker Co. v. Hewins, 204 Mass. 428, 430.
If as to the other purchase, the defendant had the right before acceptance to a reasonable opportunity of examination, he did not avail himself of it when notified by the plaintiff of the arrival of the No. 1 keeri lac, with the request that he make a “ dock examination ” before delivery to the carrier, which by the terms of the contract would have passed title. Instead of making an inspection the defendant asked the plaintiff to act for him, and to draw and forward samples, but upon their receipt he refused to accept, claiming that the merchandise was not of the quality bought. The good faith of the plaintiff, and that the samples selected were fairly representative of the whole lot does not seem to have been questioned, and if their analysis as the defendant’s chemist testified disclosed an unusually large percentage of rosin, yet the decisive question of fact common to both transactions was, whether the goods which were delivered and returned and those which were tendered and refused, conformed to the terms of sale. The judge’s finding in favor of the
Exceptions overruled.