111 Ga. 99 | Ga. | 1900
The plaintiff instituted an action in a justice’s court, to recover a judgment' against Bryan for a bill of goods amounting to $17.75. The defendant pleaded that goods similar to those named in the account attached to the summons were shipped to him, but they wholly failed to come up to samples and were immediately rejected by defendant and returned to plaintiff. The jury returned a verdict for the defendant. The plaintiff presented a petition for certiorari, which was sanctioned, and on the hearing was overruled, and the plaintiff excepted. The order for the goods was as follows:
“Imperial Portrait Co., Chicago, III. Please ship the undersigned, at your earliest convenience, the following goods at 30 days, net cash, from date of shipment.
1 Watercolor Tint “ “ ' “ “ $1.25 $ 1.25
Extra faces in portrait extra.......................a .50
Full figure............................................. . .75
12 Frames (Assorted Styles) size 16 x 20......a $1.25 $15.00
500 Hand-bill with business card.................
500 $10.00 Punch-cards, with frames at $3.15.
100 Circular-letters (Black) ........................ \ Free.
3 Show-cards.......................................
1 Punches a 50 cts........................
Total.................................'..........$17.50
“ Terms: On Frames..........................30 days net cash.
On Portraits (after 1st order) 10 days net cash.
“ Notice. The Imperial Portrait Co. agrees to furnish guaranteed portraits, as ordered, for each of above frames at regular prices as showp by above. The two sample portraits in this order may be exchanged at any time for other portraits. By shipping goods released the freight charges will be but one half the usual rates, but the consignee assumes all risk of damage while in transit.
“Guarantee. Portraits to be correct copy of small picture, and when not satisfactory to owner are to be taken out of frame and returned for correction, and then if not satisfactory to be-credited at full price. There is no other agreement except what is written or printed hereon.
“Please ship as above directed. [Signed] R. F. Bryan.
“Salesman, E. M. Prithett. Post-office, Union Point, Ga.
“ Order No. 127. Shipping point, Union Point, Ga.
“Dated at Union Point, Ga., Dec. 8, 1896.”
It was also shown for plaintiff that the goods were shipped from Chicago, December 23, 1896, consigned to the defendant-at Union Point, Ga. The defendant testified, iu his own behalf, that a salesman exhibited frames, and he made selection and signed contract. Frames did not come up to samples ;• were in
The implied warranty which arises from a sale of goods by sample is, that the quality of the bulk is equal to that of the sample. Mr. Benjamin in his Treatise oil Sales, § 649 (7th (Bennett’s) ed.), says, on authority, that “ It must not be assumed that in all cases where a sample is exhibited, the sale is a sale ‘ by sample.’ The vendor may show a sample but decline to sell by it, or the buyer may decline to trust to the sample and the implied warranty.” A number of cases are cited to support the text. Mr. Tiedeman in his work on Sales, § 188, citing a number of authorities, says: “In order that the implied warranty of correspondence of the bulk with the sample maybe claimed, it must be a veritable sale by sample. It is not sufficient that the sample is exhibited. It must be exhibited with the intention and understanding of the parties that the seller assures the buyer that the sample is a reliable representative of what the bulk of the goods is. If the facts of the case do not support the presumption that the seller intended to warrant the correspondence of the bulk with the sample, the mere production of the sample will not raise the implication of the warranty.” To the
Judgment reversed.