| Pa. | Nov 1, 1886
Opinion by
The portion of the charge covered by the second assignment of error was a distinct direction to the jury that upon a sale of goods by sample there is an implied warranty that the goods sold should be of a quality equal to that of the sample. The idea was repeated in the second clause of the language excepted
The case of Borrekins v. Bevan, 3 Rawle, 23" court="Pa." date_filed="1831-01-10" href="https://app.midpage.ai/document/borrekins-v-bevan--porter-6314434?utm_source=webapp" opinion_id="6314434">3 Rawle, 23, 23 Am. Dec. 85, was decided in 1831, and from that time to the present the doctrine that upon a sale of goods by sample there is no implied warranty of quality has received the constant sanction of this court without any interruption. It has been enforced many times in circumstances of great hardship to the purchaser, and not without a feeling of reluctance on the part of the courts, in view of its apparent lack of justice in particular cases. But it has been enforced nevertheless, and the frequency of our judgments in accordance with its terms has so firmly established it in our system of jurisprudence that nothing but an act of the legislature can now dislodge it. Many lawyers and judges of the highest character think that such a course ought to be taken, but until it is taken we do not feel at liberty to change the law. We indicated this in one of our most recent utterances upon this subject, in the case of Selser v. Roberts, 105 Pa. 242" court="Pa." date_filed="1884-01-31" href="https://app.midpage.ai/document/selser-v-roberts--co-6237662?utm_source=webapp" opinion_id="6237662">105 Pa. 242. It follows that the present case must be reversed on the second assignment of error.
It was argued that this portion of the charge was not excepted to immediately after the retirement of the jury, and that by a rule of court in Jefferson county exceptions to the charge must be made immediately after the jury retire, and hence the exception was taken too late, and must be now disregarded. In point of fact the verdict was rendered on February 19, 1886, and the exception was formally applied for, and allowed by the court on May 24, 1886. The rule of court, however, was not adopted until March 18, 1886, and hence was not applicable. The charge having been reduced to writing and filed became a part of the record, and was as open to exception in this case as though the rule had not been adopted. Being a part of the record and brought here by writ of error, it would be our duty to notice any assignments of error to it made here, even though no exception was taken in the court below. Downing v. Baldwin, 1 Serg. & R. 298; Wheeler v. Winn, 53 Pa. 122" court="Pa." date_filed="1866-10-17" href="https://app.midpage.ai/document/wheeler-v-winn-6232775?utm_source=webapp" opinion_id="6232775">53 Pa. 122, 91 Am. Dec. 186; Act of March 24, 1877, § 2, P. L. 39.
Judgment reversed and venire de novo awarded.