Sec 225

As we will hereafter have occasion to see more fully, selling by sample implies that the goods should correspond in quality to the sample, and if there be a material variance, the purchaser may rescind.8 The sample excludes an implied warranty on all matters within its range;1 but not as to matters outside such range, nor as to matters not discoverable by the sample, in which cases the warranty of merchantability may be implied.2 In both description and quality the bulk of the goods must correspond with the sample;3 but this, when a great mass of goods is sold, will be satisfied by an average correspondence, if the sample fairly represents the aggregate.4 As will hereafter be seen more fully, showing sample is not necessarily sale by sample;5 the purchaser may reject if the goods do not correspond with sample,6 but an average correspondence with sample is sufficient.7

Selling by sample implies correspondence with sample.

11 ib. 35; Hawkins v. Berry, 5 Gilm. 36; 2 Add. on Contr. 626 (Morgan's ed.)." And see Pinney v. Andrews, 41 Vt. 631; Scarborough v. Reynolds, 13 Rich. 98; Hameright v. Storer, 31 Ga. 300.

1 Infra, sec 227; Benj. on Sales, 3d Am. ed. sec 618; citing Tye v. Fynmore, 3 Camp. 462; Henshaw v. Robins, 9 Met. 83; see fully for cases, infra, sec 227.

2 Dooley v. Gallagher, 3 Hughes, C. C. 214.

3 L. 1, sec 6; L. 14, sec 10; L. 48, sec 4, D. h. t.

4 L. 10, sec 14, D. h. t.; Koch, II. 471.

5 L. 15, sec 1, D. de contr. emt. (18, 1).

6 L. 55, i. f. D. h. t. 7 Ibid.

8 Infra, sec 914. In Nichols v. Godts, 10 Ex. 191, a seller was held responsible for adulteration of rape oil, sold as rape oil, even though the bulk corresponded with the sample.

Sec 226

A false representation may be an estoppel;8 and so may be a warranty when made with intent that it should be acted on.9

Sec 227

When a buyer shows that he relies on his own judgment, and takes no express warranty, and invites no opinion from the seller, then a warranty will not be implied.10 It is otherwise when reliance is placed on the seller's statements, if he be an expert in reference to the thing sold.11 But generally a warranty is not to be stretched to cover patent defects, open to the buyer,12

Representation may be an estoppel.

No warranty when buyer depends on his own judgment.

1 Infra, sec 916-18; Leake, 2d ed. 408; Benj. on Sales, 3d Am. ed. sec 667; Mody v. Gregson, L. R. 4 Ex. 49; Dickson v. Zizinia, 10 C. B. 602.

2 Mody v. Gregson, L. R. 4 Ex. 49; Fraley v. Bispham, 10 Penn. St. 320.

3 Infra, sec 914; Azemar v. Casello, L. R. 2 C. P. 677; Henshaw v. Robins, 9 Met. 86; Brower v. Lewis, 19 Barb. 574; Moses v. Mead, 1 Denio, 378; Hargons v. Stone, 5 N. Y. 73; Borre-kins v. Bevan, 3 Rawle, 37; Boyd v. Wilson, 83 Penn. St. 319, where, however, it was held that a sale by sample does not warrant quality, but merely similarity with sample, and merchantability.

4 Leonard v. Fowler, 44 N. Y. 289. That in sample sales there should be opportunity of inspection, see infra, sec 505, 916.

5 Infra, sec 915.

6 Infra, sec 914 el seq. 7 Infra, sec 917. 8 Infra, sec 234.

9 Infra, sec 237.

10 Supra, sec 224; infra, sec 245, 907; Chanter v. Hopkins, 4 M. & W. 402; Dounce v. Dow, 64 N. Y. 411; Lord v. Grow, 39 Penn. St. 88; Cogel v. Knise-ley, 89 111. 598; see Hight v. Bacon, 126 Mass. 10, cited infra, sec 907. As to suppression of defects by vendor, see infra, sec 250.

11 Infra, sec 245, 250; Bragg v. Morrill, 49 Vt. 45; Hoe v. Sanborn, 21 N. Y. 552; Bartlett v. Hoppart, 34 N. Y. 118. See Chandeler v. Lopus, 1 Smith's L. C. 7th Am. ed. 299 et seq.; Nye v. Alcohol Works, 51 Iowa, 129.

12 Infra, sec 907; supra, sec 224; Dyer v. Hargrave, 10 Ves. 505; Margetson v. Wright, 5 M. & P. 606; 7 Bing. 603.

and examined by him,1 though it is otherwise as to matters which the buyer is incapable, from ignorance or infirmity, of distinguishing; or which escaped his notice;2 or as to which he is misled.3 Nor is a buyer bound to investigate that which is warranted. He is entitled to take the seller's warranty as relieving him, unless in cases of patent and glaring defect, from examination.4 But it is otherwise when the false statement is an appeal to investigation, and not a warranty of a fact.5