The exception upon which the appellant seems mainly to rely is to that portion of the charge in which the Court in effect told the jury: That where goods are sold by sample the law implies a warranty that the articles shall not be inferior in quality to the sample, and that if they are the purchaser may accept them and bring an action for the breach of warranty. Such we understand to be the law. (Polhemus v Heiman, 45 Cal. 573.)
The charge as to the measure of damages was in accordance with the rule contained in the Code. (C. C. 3313). Evidence of what the usage or custom in San Francisco was as to sales by sample, was properly rejected. (Polhemus v. Heiman, 50 Cal. 438, 441).
The instructions asked by the defendant contradicted those given and excepted to, and there was no error in refusing to give them.
There was some conflict in the evidence upon the main issue, and it appears to have been fairly submitted to the jury.
Judgment and order affirmed.