114 Mass. 123 | Mass. | 1873
We cannot see that, as matter of law, a custom in a particular trade, to regard a sample as representing the average quality of an entire cargo or lot of merchandise, may not have a reasonable foundation, and be a good and valid custom entering into the contracts of parties. To a greater or less degree, it is necessarily so in all cases where the sale is of articles in their nature not entirely uniform in quality. A sample represents the character of a larger mass only approximately.
We can conceive that in respect of some articles, and for some purposes, uniformity of quality may be of essential importance. In others, and for other purposes, it may be of very little consequence. In the latter case the purchaser may have his full rights he obtains, in the entire quantity delivered, the aggregate or average of quality and value indicated by the sample. The fact that the berries were contained in twenty-six separate bags does not necessarily imply an agreement that each bag shall be equal to the sample; or that the comparison is to be made separately with each bag. Whether or not that was the proper mode oi applying the standard of quality was a question of fact, depend
Exceptions overruled.
