The judgment of the Supreme Court was entered, February 5th 1877,
Per Curiam.
— If we trace the law of this state through the following cases we shall find that a sale of chattels by the production of a sample, but without fraud or circumstances to fix the character of the sample as a standard of quality, is not attended by any implied warranty of the quality. The sample under such circumstances, pure and simple, becomes a guaranty only that the articles to be delivered shall follow its kind, and be simply merchantable. These are the cases referred to: Borrekins v. Bevan, 3 Rawle 23; Jennings v. Gratz, Id. 169; Kirk v. Nice, 2 Watts 367; McFarland v. Newman, 9 Id. 56 ; Fraley v. Bispham, 10 Barr 320; Carson et al. v. Baillie, 7 Harris 378; Wetherill v. Neilson, 8 Id. 448; Eagan v. *325Call, 10 Casey 236; Weimer v. Clement, 1 Wright 147; Whitaker v. Eastwick, 25 P. F. Smith 229. Such precisely was the state of this case. The broker going on a business round produced a can' of the corn and exhibited it to the defendants, and they afterwards asked to see others, which they opened and examined, and proved by cooking for themselves. On the following day they made an offer for the lot, which 'was accepted. There was no fraud and no warranty of the quality, and no circumstances to show that the parties dealt upon the basis of a quality to be precisely such as the cans exhibited contained. The evidence also showed that such cans are hermetically sealed to preserve the corn and are'thus both bought and sold, and that the only true indication of their being spoiled is the bulging of the cans, produced by fermentation, and the consequent evolution of gases, which swell out the head. It was also shown that these cans were not bulged. The court charged if there were fraud in the selection of the cans, as a means of imposition, or they were of a particular lot and the seller delivered from a different lot, it would be evidence of fraud. But the court saw no evidence in the case of either fraud or warranty, and under these circumstances charged that a sale by sample was not in itself a warranty of the quality of the corn. This language is too broad for all cases, but, under these facts, it seems to us there was no error in the instruction. It was said of a general sale without circumstances. The seller did not agree or say that the remainder should be of the same quality as the sample, and the purchaser did not order the corn to be delivered to be of the same quality as the sample. Nothing was said or done on either side to give character to the sample cans as a standard of the quality. This being the nature of the sale, the sample became a standard only of the kind, and that the goods were simply merchantable. So long as the com-modify is 'saleable its different degrees of quality from good to bad are not the subject of an implied warranty. If it be wholly unmarketable, such as cannot be considered merchantable, probably a different conclusion would be reached, because an unmarketable article is substantially different in kind from one that is sale-able in the market. In such a case it is. not the name merely which governs, but the fact that it is without market value, and cannot reasonably be pronounced of the same kind as the sample. In Jennings v. Gratz, supra, it was held that a moderate degree of adulteration often did not destroy the merchantable character of an article of sale, but the court said: “Adulteration may be carried so far as to destroy the distinctive character of the thing altogether, and in doubtful cases there is perhaps no practical test but that of its being merchantable under the denomination affixed to it by the seller.” Judgment affirmed.
Shauswood, J., dissents.
*326After the above judgment was entered, the plaintiffs in error petitioned the court for a re-argument, among other reasons therefor assigning the following : That the time allowed for argument (one hour) was too brief; that the decicion was counter to the prevalent understanding among the bar and business community in regard to the law governing sales by sample; that many of the heaviest transactions of commerce in the state, with other states, and foreign countries are conducted through the medium of sales by sample, and without other warranty than that which has been universally understood to be implied by an exhibition of a sample of the goods offered for sale; that sales aré thus effected in commercial exchanges, by brokers, travelling-agents, and foreign merchants through agents in this country, and that all the great interests which they represent will be prejudiced, if this decision is allowed to stand.
Further that, even under the rules enunciated by this court, this case ought to be reversed, inasmuch as the evidence was direct, full and uncontradicted that a large portion of the corn was “ bad,” “ unsaleable,” “ unfit for food” and “ unmarketable,” and that the good and bad being mixed, rendered the whole unsaleable, there being-no means of separating them ; and further, that the court below had given the jury a binding instruction that the plaintiffs in error were bound to keep and pay for the cans proved to have been unfit for food and unmarketable, which, under the opinion in this case, was error.
On the 19th of February 1877, the following additional judgment was entered,
Per Curiam.
— We announced, in this case, the result of a long line of decisions. The motion for a re-argument is simply a demand for a change in the law — for judicial legislation. The law of this state has long been thoroughly settled by its courts, that a sale of chattels without fraud or misrepresentation creates no liability for quality, and that the production of a part of the goods, when not made by the acts or agreements of the parties a standard of the quality, carries with it no implication of a contract of warranty of the quality. Much of the confusion of thought in these cases is engendered by the use of the word “ sample,” the mind implying, from the word, and not the facts of the sale, an intention to make the sample a criterion of quality. When in fact the sample is made the standard of quality, as if the buyer orders goods of the same quality, or the seller engages to deliver them of the same quality, an implication arises. Hence it is always in the power of the buyer to command an article of the same quality. But in the absence of an undertaking for the quality, or of those facts from which it can be assumed, the law leaves the parties just as they were. It never has been the law of this state that a sound price required a sound *327article, for the, reason that if the quality of an article be the criterion, instead of the bargain or specific intent of both parties, there would be no end to ruinous litigation. Parties axe therefore left to their own judgment and diligence, unless there be fraud or deceit practised by the seller. Peace and good order are thereby promoted, and the parties prompted to proper care and diligence, and to make their bargains so that neither will misunderstand his rights. Take this case as an example. Here is an article enclosed in an air-tight can, the quality of which is unknown to both buyer and seller, and can be ascertained only by opening the can, which is destruction. The article is bought and sold in this condition by wholesale and by retail. If the buyer will not risk the contents, he must require a warranty. But then the seller will demand a higher price to compensate him for the entire risk. Now, if the buyer have made no bargain for quality, on what principle of fair dealing shall he have the advantage of both prise and quality ? Had he said to the seller, “You must deliver me corn of the same quality as in these exhibited cans,” the latter would have said, “ I will do so ; but I must be compensated for this risk, and I require so much more to be added to the price.” It is evident, therefore, that the only just rule, in the absence of fraud or deceit, is to suffer the parties to bargain for themselves as to quality ; otherwise, so long as the article is merchantable, the buyer cannot complain of his own remissness. The real secret of these attempts to raise a warranty by implication is that buyers wish to buy as cheaply as they can, and it is only when they find that they have made bad bargains they complain. If they get a superior article for a low price, they will stoutly insist upon standing on their bargains and paying no more, even if the article be worth double the price paid. The truth is, the argument upon the sample is a petitio prineipii. It assumes a bargain when none is intended. It takes the mere word “sample,” and refuses to look at the evidence which discloses no intent to warrant the quality, and leaves the buyer to his own judgment and diligence in making his bargain.
It is said that in the present state of the commercial world much of the business is done by travelling agents and through mere samples. True, the business of the world has changed greatly, but this is an argument to be addressed to the legislature, not to us. We declare the law, but do not make it. If the law as we find it does not suit the times let it be changed by those who possess legislative power. If the law of England or other states differs from ours, to them let petition be made to assimilate them. When sifted, the whole argument addressed to us is a petition in favor of change, not declarative of the law.
It is alleged as a reason for a re-argument that some of the cans were proved to be bad, unfit for food. But the plaintiffs in error know full well no such point was taken in the court below. They *328fought the case on the ground of an implied warranty of the whole, because of a sale by sample. No instruction was asked for a verdict for so much as was proved to be not merchantable. It was a battle for all or for nothing. The learned counsel who urges this reason knows well that a court of error does not reverse upon issues not made in the court below. Re-argument refused.
Sharswood, J., dissents.