with law, but also that it be so generally established and well known that the inference of knowledge by the vendor be irresistible.76 EXPRESS WARRANTIES DO NOT NEGATIVE IMPLIED WARRANTIES.—Although there is some conflict in the application of the principles of the common law," this provision of the Act must be considered as abrogating the common law doctrine and establish injustice, by regarding such customs and usages, it is the only mode by which justice can be attained. The presumption is, indeed, that those who enter into contracts, intend to be governed by the general principles of law. It is, however, competent for them to renounce those principles, where public policy does not forbid, and to adopt another rule of action; and the prevalence of a particular local usage on the subject, variant from those general rules, in the absence of evidence to resist it affords a rational ground of inference that they intend to do so." Kilgore v. Bulkley, 14 Conn. 362, 390-391. "The proper office of a custom or usage in trade is to ascertain and explain the meaning and intention of the parties to a contract, whether written or in parol, which could not be done without the aid of this extrinsic evidence. It does not go beyond this and is used as a mode of interpretation on the theory that the parties knew of its existence and contracted with reference to it. It is often employed to explain words and phrases in a contract of doubtful signification or which may be understood in different senses, according to the subject matter to which they are applied." Barnard v. Kellogg, 77 U. S. (10 Wall.) 383. 76. "Such usage must be lawful and reasonable, and so certain and general, in the place where the business is to be done, or the contract performed, or among those engaged in such business, that the parties to the contract may reasonably be sup posed to know it, and to act in reference to it. In such case, it may be taken that the usage entered into and became a part of the contract." Leach v. Beardslee, 22 Conn. 404, 408. To the same effect is Sturges v. Buckley, 32 Conn. 265, 267. "There was no evidence that the defendant had any actual knowledge of the custom, and she was liable, if at all, by reason of the custom, because it was a general, known and established one. At common law, a custom was not an established one, unless it was shown to have existed from time immemorial. By the more recent law, the true test of such a custom is its having existed a sufficient length of time to have become generally known and to warrant the jury in finding that the contracts were made in reference to it. Powell v. Bradlee & Co., 9 G. & J. (Md.) 220; Burroughs v. Langley, 10 Md. 248; Smith v. Wright, 1 Caines (N. Y.), 45; Treadwell v. Union Ins. Co., 6 Cow. (N. Y.) 273; Crosby v. Fitch, 12 Conn. 410; Bliven v. N. E. Screw Co., 64 U. S. (23 How.) 431. No person can be made liable by reason of a custom, except when it is shown that he had knowledge of the custom. In cases where the custom is a limited or special one, actual knowledge must be proved. And every custom is a limited and special one until it is shown to have existed long enough to sustain the test above stated." Smith v. Phipps, 65 Conn.. 302, 307-8. 77. See express warranties, sec. 12 (notes 28-34). ing a new rule." It has generally been held at common law that an express warranty excluded an implied warranty on the ground that if the buyer secured any warranty, he undertook to secure all the warranties he desired, and that, therefore, the parties had limited the seller's undertaking to the warranties expressly given. This rule had the merit of certainty, and, in the case of a competent and experienced business man, might work no injustice; but in other cases might often be used as a means of great injustice and fraud. The incidents of sales concerning which the law implies warranties are very few, and those concerning which the buyer may think it necessary to protect himself are innumerable, many of which are entirely consistent with those implied by law; and the buyer knowing that the law implies certain warranties, may not know the technical rule that express warranties exclude them, and may consequently fail to protect himself, relying upon the warranties implied by law. The rule established by the Act, therefore, seems the more equitable." Section 16. Implied Warranties in Sale by Sample.- In the case of a contract to sell or a sale by sample (a.) There is an implied warranty that the bulk shall correspond with the sample in quality, (b.) There is an implied warranty that the buyer shall have a reasonable opportunity of comparing the bulk with the sample, except so far as otherwise provided in section forty-seven of this Act, (c.) If the seller is a dealer in goods of that kind, there is an implied warranty that the goods shall be free from any defect, 78. Mullain v. Thomas, 43 Conn. 252; Malsby v. Young, 104 Ga. 205; Reeves v. Byers, 155 Ind. 535; McGraw v. Fletcher, 35 Mich. 104; Prentice v. Dike, 6 Duer (N. Y.), 220; Lanier v. Auld, 5 N. C. (1 Murphey) 138, Wells v. Spears, 1 McCord (S. C.) 421; Richardson v. Brown, 1 Bing. 344; Budd v. Fairmaner, 8 Bing. 48; 5 C. & P. 78 (1831). "No warranty is implied where the parties have expressed in words 79. Bucy v. Pitts Agricultural Works, 89 Iowa, 464; Mody v. Gregson, L. R. 4 Exch, 49, 53. rendering them unmerchantable, which would not be apparent on reasonable examination of the sample. A contract to sell or a sale of goods by sample implies a warranty by the vendor that the bulk of the goods are equal in kind, quality and condition to the sample.1 1. Prejean v. Wogan Bros., 110 La. 362; Fisher v. Andrews, 94 Md. 46; Dreyfuss v. Goss, 67 Kans. 57; Am. Coal Co. v. Rayburn, 150 Mich. 616; Springer v. Indianapolis Brewing Co., 126 Ga. 321; Canton V. McDaniel, 188 Mo. 207; Wolfe Bros. Shoe Co. v. Bishop, 72 Kan. 687; Portland Cement Co. V. Turpin, 126 Ga. 677; Monroe v. Hickox, 144 Mich. 30; Richardson v. Noble, 143 Mich. 546; Reynolds v. Palmer, 21 Fed. 433; Schuchardt v. Allen, 68 U. S. (1 Wall.) 359; Barnard v. Kellogg, 77 U. S. (10 Wall.) 383; Magee v. Billingsley, 3 Ala. 679; Gachett v. Warren, 72 Ala. 288; Meyer Bros. Drug Co. v. Puckett, 139 Ala. 331; Duffie v Pratt, 76 Ark. 74; Pratt v. Metzger, 78 Ark. 177; Moore v. McKinlay, 5 Cal. 471; Hughes v. Bray, 60 Cal. 284; Merriman v. Chapman, 32 Conn. 146; Browning v. McNear, 145 Cal. 272; Love v. Mfg. Co., 3 Penn. (Del.) 152; Wilcox v. Howard, 51 Ga. 298; Christian v. Knight, 128 Ga. 501; Kohl v. Lindley, 39 Ill. 195, 203; Hanson v. Busse, 45 Ill. 496, 499; Hubbard v. George, 49 Ill. 275; Webster v. Granger, 78 Ill. 230; Converse v. Harzfeldt, 11 Ill. App. (11 Bradw.) 173; Home Lightning Rod Co. v. Neff, 60 Ia. 138; Myer v. Wheeler, 65 Ia. 390; Brigham v. Retelsdorf, 73 Ia. 712; Gill v. Kaufmann, 16 Kans. 571; Hall v. Plassan, 19 La. Ann. 11; Gunther v. Atwell, 19 Md. 157; Bradford v. Manley, 13 Mass. 139; Hastings v. Lovering, 19 Mass. (2 Pick.) 214, 219; Williams v. Spafford, 25 Mass. (8 Pick.) 250; Henshaw v. Robins, 50 Mass. (9 Met.) 83, 86; Whitmore v. So. Bos ton Iron Co., 84 Mass. (2 Allen) 52; Dickinson v. Gay, 89 Mass. (7 Allen) 29; Lothrop v. Otis, 89 Mass. (7 Allen) 435; Pike v. Fay, 101 Mass. 131, 134; Atwater v. Clancy, 107 Mass. 369; Townsend v. Hargraves, 118 Mass. 325, 331; Schnitzer v. Oriental Print Works, 114 Mass. 123; Churchill v. Palmer, 115 Mass. 310; Gould v. Stein, 149 Mass. 570, 5 L. R. A. 213; Day v. Raguet, 14 Minn. 203; Leitch v. Mfg. Co., 64 Minn. 434; Voss v. McGuire, 18 Mo. App. 477; Hollander v. Koetter, 20 Mo. App. 79; Graff v. Foster, 67 Mo. 512; Morrill v. Wallace, 9 N. H. 111, 116; Boothby v. Plaisted, 51 N. H. 436; Sands v. Taylor, 5 Johns. (N. Y.) 395, 404; Oneida Mfg. Soc. v. Lawrence, 4 Cow. (N. Y.) 440; Andrews v. Kneeland, 6 Cow. (N. Y.) 354; Gallagher v. Waring, 9 Wend. (N. Y.) 20; Waring v. Mason, 18 Wend. (N. Y.) 425; Beebe v. Robert, 12 Wend. (N. Y.) 413; Howard v. Hoey, 23 Wend. (N. Y.) 350; Boorman v. Jenkins, 12 Wend. (N. Y.) 566; Moses v. Mead, 1 Denio (N. Y.), 378; Dike v. Reitlinger, 23 Hun (N. Y.), 241; Brower v. Lewis, 19 Barb. (N. Y.) 574; Fisher v. Merwin,, 1 Daly (N. Y.), 234; Swett v. Colgate, 20 Johns. (N. Y.) 196; Murray v. Smith, 4 Daly (N. Y.), 277; Salisbury v. Stainer, 19 Wend. (N. Y.) 159; Bierne v. Dord, 5 N. Y. 95; Hargous v. Stone, 5 N. Y. 73; Hoe v. Sanborn, 21 N. Y. 552, 562; Foot v. Bentley, 44 N. Y. 166; Leonard v. Fowler, 44 N. Y. 289; Gurney v. Atlantic, etc., R. R. Co., 58 N. Y. 358; Osborn v. Gantz, 60 N. Y. 540; Briggs v. Hilton, 99 N. Y. 517; McClure v. Central Trust Co., 165 N. Y. 108; Smith v. Coe, 170 N. Y. 612; Henry The exhibition of a sample amounts to an affirmation that the goods are of the same kind and quality as the sample and is thus & Co. v. Talcott, 175 N. Y. 385; Dayton v. Hooglung, 39 Ohio St. 671; Wadham v. Balfour, 32 Ore. 313; Rose v. Beatie, 2 N. &. MeC. (S. C.) 538; Brantley v. Thomas, 22 Tex. 270; Whitaker v. Hueske, 29 Texas, 355; Proctor v. Spratley, 78 Va. 254; Getty v. Rountree, 2 Chand. (Wis.) 28; Merriam v. Field, 24 Wis. 640; Parker v. Palmer (1821), 4 B. & Ald. 387, 391; Syers v. Jonas (1848), 2 Exch. 111, 117; Carter v. Crick (1859), 28 L. J. Ex. 238, 4 H. & N. 412; Parkinson v. Lee (1802), 2 East, 314; Randall V. Newson (1877), 2 Q. B. D. 102, 106; Walker v. Shaw (1904), 2 K. B. 152; 2 Mechem on Sales, § 1320; 1 Page on Contracts, 164. 66 6 Def.: Quality of goods' includes their state and condition." Sec. 76. "Of implied warranties sales of chattels, there are several recognized by law. The first and most general is, that, in a sale of goods by sample, the vendor warrants the quality of the bulk to be equal to that of the sample. The rule is SO universally taken for granted that it is hardly necessary to give direct authority for it." Benjamin on Sales, § 648. "A sale by sample is held to imply a warranty that the bulk of the article corresponds in quality with the article exhibited. Bradford v. Manley, 13 Mass. 139; Waring v. Mason, 18 Wend. (N. Y.) 425." Merriman v. Chapman, 32 Conn. 146, 148. "All sales by sample carry with them a guaranty that the article, in bulk, is of the same quality, in all respects, as the sample exhibited." The Monte Allegre, 22 U. S. (9 Wheat.) 616, 644. The last attempt to substitute the civil for the common law rule failed. Hart v. Wright, 17 Wend. (N. Y.) "We 267, 18 Wend. (N. Y.) 449. have made one inroad upon the com mon law rule and allowed a warranty to be implied on a sale by sample that the bulk of the article correspond in quality with the sample exhibited. Waring v. Mason, 18 Wend. (N. Y.) 425. This exception to the general rule, although now firmly established, stands upon no principle. If the purchaser wants such a warranty he should ask for it and then the vendor will have the opportunity of saying whether he will consent to make such contract or not. The law now makes it for him without his consent." Moses v. Mead, 1 Denio (N. Y.), 378, 386. "A six ton scale, equal in every respect to another scale, need not be equal to the sample if that is of greater strength than is necessary." Lothrop v. Otis, 89 Mass. (7 Allen) 435. A vendor agreed to sell coal dredged from a river, called "river anthracite," a specimen of which he sent the vendee, saying: "It may run a little better or a little worse; we take it as we get it and so ship it," and "the sample sent you is about an average. You may judge from it the percentage of sticks, stones, etc., in it," may be found not to be a sale by sample. Cox v. Anderson, 194 Mass. 136. Warranty by agent.-"A merchant, who employs a broker to sell his goods, knows, or is presumed to know, the state and condition of the article he offers for sale; and if the nature or situation of the property is such that it cannot be conveniently examined in bulk, he has a right, and it is for the convenience of trade that he should be permitted, to select a portion and exhibit it as a specimen or sample of the whole; and that he should be held responsible for the truth of such representation. The broker is his special agent for this purpose, and goes into the market, clothed with authority to bind his principal. In such cases, if the ar an express warranty; but correspondence between the bulk and sample is usually treated as an implied warranty.2 All sales in which a specimen of the goods has been exhibited during the negotiations are not sales by sample. In order to con ticle does not correspond with the sample, the injured purchaser knows where to look for redress; and the owner is justly chargeable with the loss, as he was bound to know the condition of his own property, and to send out a fair sample, if he undertook to sell in that way." The Monte Allegre, 22 U. S. (9 Wheat.) 616, 644. See, also, 2 Mechem on Sales, § 1287; Schuchardt v. Allen, 68 U. S. (1 Wall.) 359; Dayton v. Hooglung, 39 Ohio St. 671. In Pennsylvania the warranty is that the bulk is of the same kind or species as the sample and is merchantable, but not that it is of the same quality as the sample. Williams v. Spafford, 25 Mass. (8 Pick.) 250; Oneida Mfg. Soc. v. Lawrence, 4 Cow. (N. Y.) 440; Andrews v. Kneeland, 6 Cow. (N. Y.) 354; Sands v. Taylor, 5 Johns. (N. Y.) 395, 404; Gallagher v. Waring, 9 Wend. (N. Y.) 20; Fraley v. Bispham, 10 Pa. St. 320; Boyd v. Wilson, 83 Pa. St. 319; Selser v. Roberts, 105 Pa. St. 242; Hoffman v. Burr, 155 Pa. St. 218; Rose v. Beatie, 2 N. & McC. (S. C.) 538; Jones v. Bowden, 4 Taunt. 847, 853; Parker v. Palmer, 4 B. & Ald. 387. 2. Bradford v. Manley, 13 Mass. 139; Conner v. Henderson, 15 Mass. 319; Gurney v. R. R. Co., 58 N. Y. 358; Vanderhost v. McTaggert, 1 Brev. (S. C.) 269; Parker v. Palmer, 4 B. & Ald. 387; 2 Mechem on Sales, § 1320; Benjamin on Sales, § 648. The doctrine that an implied warranty arises upon every sale by sample "with the most obvious propriety, has been limited by the recent cases in this State (unless the goods are so situated that they cannot be examined by the buyer) to those cases where the warrant circumstances the inference that the seller ac 3 tually undertook that the bulk of the commodity sold correspond with the sample ( (Waring v. Mason, 18 Wend. [N. Y.] 425; Hargous v. Stone, 1 Seld. [5 N. Y.] 73). In view of the principle settled by these cases it is equally clear that warranties of this sort are not strictly implied warranties. They are to be made out, as a matter of fact, or they do not exist at all. To infer an actual warranty from the circumstances proved is one thing, to impute a warranty without proof is another and different thing; unless we distinguish between the two, we unavoidedly get into confusion." Hoe v. Sanborn, 21 N. Y. 552, 564. Citing Jones v. Bright, 5 Bing. 533. "A sale by sample is tantamount to an express warranty that the sample is a true representation of the article sold." Coolidge v. Brigham, 42 Mass. (1 Met.) 547, 552. Citing Bradford v. Manley, 13 Mass. 139; Gallagher v. Waring, 9 Wend. (N. Y.) 20; Beebe v. Robert, 12 Wend. (N. Y.) 413 3 Browning v. McNear, 145 Cal. 272; 2 Mechem on Sales, § 1231. "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, and require the purchaser to inspect the bulk at his own risk; or the buyer may decline to trust to the sample and the implied warranty, and require an ex press warranty, in which case there is no implied warranty." Benjamin on Sales, § 649. Citing McMullen v. Helberg, 4 L. R. Ir. 94, 119, 6 L. R. 463; Tye v. Fynmore, 3 Camp. 462 (an express warranty that the goods "fair merchantable sassafras wood" excluded the implied war were |