entering a vigorous dissent. Twenty-one years later, Snowden v. Warner was disaffirmed,' and in Wetherell v. Neilson 2 it was subsequently overruled.

In an Ohio case,3 a usage among tobacco-dealers in Cincinnati to warrant, in sales of tobacco of a particular description, the article to remain sound and merchantable for the space of four months after the sale, was admitted, the court relying upon Jones v. Bowden. But in New York it has been held that usage is not admissible to show that the sale of any particular article implies a warranty of its goodness. In Thompson v. Ashton,5 decided by the Supreme Court of New York in 1817, the plaintiff's agent went to the store of the defendant to purchase crockery-ware, and the latter sold him forty-six crates of crockery-ware, according to the printed catalogue of certain auctioneers in whose store the crockery was for sale, which catalogue conformed to the invoice. The witness did not open the crates, but after they were sent to the plaintiff several of them were found to be bad, consisting of ware of an inferior quality. The plaintiff desired to rescind the sale, but, the defendant refusing, he brought an action for the fraud, and on the trial offered to prove that it was the custom and usage of merchants in this article that the purchaser purchased and the seller sold on the invoices without opening the crates or examining the ware in them, and that it was the uniform understanding in the trade, in such transactions, that the exhibition of the invoices amounted to an undertaking on the part of the seller that the ware was good and merchantable. The trial judge rejected this evidence, and the plaintiff was nonsuited. On appeal, the court sustained the ruling, saying: "The evidence offered of a usage or custom in relation to the sale of crockery-ware was properly rejected. No custom in the sale of any particular description of goods can be admitted to control the general rules of law. Such a principle would be extremely pernicious in its consequences, and render vague and uncertain all the rules of law in the sale of chattels."

1 Coxe v. Heisley, 19 Pa. St. 243.
3 Fatman v. Thompson, 2 Disney, 482.
5 14 Johns. 316.

2 20 Pa. St. 448.

4 4

Taun. 483.

(2.) Where goods are sold by sample, the seller is held to warrant that they correspond with the sample. The exhibition of a sample is equivalent to an affirmation that all the goods sold by it are similar.2

4

(3.) But if the sample be fairly drawn from the bulk of the goods, and the bulk corresponds with the sample, but there is a defect in both sample and bulk, and this defect is unknown and undiscernible, there is no implied warranty against this defect, and the seller is not responsible.3 A usage in opposition to this rule has been held invalid in Massachusetts. In Dickenson v. Gray, the sale was of unprinted satinet cloths purchased of the manufacturers by sample, and it appeared that the bulk of the goods was not equal to the sample; that both the sample and the bulk of the goods were damaged by mildew, and that the defect was latent and could not be discovered until the goods were printed. The defendant offered evidence, in an action for the price of the goods, of a usage of merchants by which in such cases the seller should make good to the purchaser the damage occa

I I Pars. on Con. 585; 2 Kent's Comm. 481; Benj. on Sales, sect. 648; Dickenson v. Gray, 7 Allen, 29; Williams v. Spafford, 8 Pick. 250; Oneida Man. Co. v. Lawrence, 4 Cow. 440; Gallagher v. Waring, 9 Wend. 20; Boorman v. Jenkins, 12 Wend. 566; Waring v. Mason, 18 Wend. 425; Hargous v. Stone, 5 N. Y. 73; Beirne v. Dord, 5 N. Y. 95; Phillipi v. Gove, 4 Rob. (La.) 315; Hall v. Plasson, 19 La. An. 19; Ricks v. Dillahunty, 8 Port. 140; Magee v. Billingsley, 3 Ala. 679; Brantley v. Thomas, 22 Texas, 270; Gunther v. Atwell, 19 Md. 157; Otis v. Alderson, 10 Smed, & M. 476; Borrekins v. Bevan, 3 Rawle, 37; Hanson v. Busse, 45 Ill. 498; Day v. Raquet, 14 Minn. 273; Bragg v. Morrill, 49 Vt. 45; Bradford v. Manly, 13 Mass. 138. And note, 7 Am. Dec. 125.

2 Story on Sales, sect. 376; Lorymer v. Smith, 1 Barn. & Cress. 1; 2 Dowl. & Ry. 23; Hibbert v. Shee, 1 Camp. 113; Parkinson v. Lee, 2 East, 314; Beebe v. Robert, 12 Wend. 413; Parker v. Palmer, 4 Barn. & Ald. 387; Andrews v. Kneeland, 6 Cow. 654; Hastings v. Lovering, 2 Pick. 219; Sands v. Taylor, 5 Johns. 359; Gatling v. Newell, 9 Ind. 572; Moses v. Mead, I Denio, 386; Rose v. Beattie, 2 Nott & M. 538; Brower v. Lewis, 19 Barb. 574; Ormrud v. Huth, 14 Mee. & W. 664.

3 Story on Sales, sect. 376; Parkinson v. Lee, 2 East, 313; Ormrud v. Huth, 14 Mee. & W. 663; Carter v. Creck, 4 Hurl. & N. 412; Gunther v. Atwell, 19 Md. 157; Sands v. Taylor, 5 Johns. 395.

47 Allen, 29.

sioned by the defect. The court admitted this evidence, and the jury, in answer to special questions, found that the usage existed; that there was a defect in the goods; that it diminished their value in the sum of $1,456.23; that the goods were not equal to the sample, and that this last defect diminished the value of the goods in the sum of $517.18. The plaintiff had a verdict for the balance of the price at which the goods were bargained for, deducting the sum of $517.18-thus rejecting the effect of the usage. On appeal, the judgment was affirmed, the court holding that the deduction of $517.18 was properly allowed. "The sale," said Chapman, J., "was by sample. On such a sale it is admitted that the law implied a warranty that the bulk of the goods shall be equal in quality to the sample.1 The jury have found that these goods were not equal to the sample, and have assessed the damages at $517.18. This sum is therefore to be deducted from the agreed price." But the usage set up in the case was adjudged invalid. After reviewing the cases in which usages in opposition to rules of law had been rejected, Chapman, J., said: "There is no necessity for such usages; because, if the parties agree that there shall be a warranty where the law implies none, they can insert the warranty in the bill of sale, or, if the manufacturer sells without warranty, he can so express it. But if such usages were to prevail they would be productive of misunderstanding, litigation, and frequent injustice, and would be deeply injurious to the interests of trade and commerce. They would make it necessary to prove the law of the case by witnesses on the stand, and it would be settled by the jury in each particular case. Public policy, therefore, requires that, where parties assume obligations which the law does not impose, or release obligations which it does impose, it should be done by express contract." This rule, therefore, falls within our third division.

(4.) The mere exhibition, at the time of the sale, of a sample

of the goods does not of itself constitute such a sale by sample as to subject the seller to liability upon an implied warranty; for the reason that such sample may only be shown to enable the purchaser to form an opinion of the probable qualities, without any intention on the part of the seller to warrant all the goods sold to be equal to it. The seller by sample is, perhaps, presumed to warrant that the bulk is of the same kind and equal in quality with the sample in reference to which the contract is made. But to enforce such a contract when denied, it must be established by evidence of the acts and declarations of the parties tending to prove a contract of sale by sample, and cannot be established by proof that it was the general custom of persons dealing in the particular article thus to contract.3

(5.) The general rule of law that, upon the sale of an article by a manufacturer, there is an implied warranty that it will answer the purpose for which it is made,+ cannot be altered by usage — as, for example, by a usage of founders not to warrant their castings against latent defects; or, in the case of patent defects, to be entitled to have the castings. returned in a reasonable time, and to have the option of replacing them with new ones.5

I

Hargous v. Stone, 5 N. Y. 73; Waring v. Mason, 18 Wend. 425; Hanson v. Busse, 45 Ill. 496; Torvell v. Gatewood, 2 Scam. 22; Adams v. Johnson, 15 Ill. 345; Kohl v. Lurder, 39 Ill. 195; Rose v. Beattie, 2 Nott & M. 638; Brower v. Lewis, 19 Barb. 574; Gardner v. Gray, 4 Camp. 114; Powell v. Horton, 2 Bing. N. C. 668.

2 Waring v. Mason, 18 Wend. 425; Osborn v. Garitz, 60 N. Y. 540; Boyd v. Nelson, 83 Pa. St. 319.

3 Beirne v. Dord, 2 Sandf. 89, 5 N. Y. 73.

4 Ollivant v. Bayley, 5 Q. B. 288; Charter v. Hopkins, 4 Mee. & W. 399; Jones v. Bright, 5 Bing. 533; Brown v. Edgington, 2 Man. & G. 279; Gurney v. Atlantic, etc., R. Co., 58 N. Y. 358; Jones v. Just, L. R. 3 Q. B. 197; Port Carbon Iron Co. v. Groves, 68 Pa. St. 149; Brown v. Murphee, 31 Miss. 91; Field . Kinnear, 4 Kan. 476; Street v. Chapman, 29 Ind. 142; Kingsbury v. Taylor, 29 Me. 508; Pacific Iron-Works v. Newhall, 34 Conn. 67; Hoe v. Sanborn, 21 N. Y. 552; Bragg v. Morrill, 49 Vt. 45; Mason v. Chappell, 15 Gratt. 572; Gerst v. Jones, 10 Cent. L. J. 151; Bigge v. Parkinson, 7 Hurl. & N. 955.

5 Whitmore v. South Boston Iron Co., 2 Allen, 52.

2

(6.) It was intimated by Nelson, C. J., in an early New York case, that the rule that, on a simple pledge of stock to a broker as collateral security, the pledgee has no right to dispose of it before the pledgeor fails to comply with his engagement, might be changed by usage-e.g., the general custom of brokers to hypothecate or dispose of it at pleasure, and, on payment or tender of the principal debt, to return an equal number of shares of the same kind of stock. This language, however, was and has been disaffirmed in subsequent New York cases where the law concerning pledges and the effect of customs derogatory thereto have been considered. Thus, in Markham v. Jaudon, the defendants, who were stockholders, purchased certain stocks for plaintiff in their own names and with their own funds, he depositing with them a "margin" of ten per cent, which he agreed to "keep good." The plaintiff having failed to "keep the margin good," the defendants sold out the stock without notice to him. It was held by the Court of Appeals that the relation between the parties was that of pledgeor and pledgee; that a sale under such circumstances without notice was a conversion; and that, in an action by the plaintiff for such conversion, evidence of a usage that stock held as in this case might be sold by the broker whenever, by the fall of the stock in the market, the "margin" was exhausted and not renewed, was inadmissible, because in direct variance with the rules of law applicable to the relation of the parties. "This was an offer," said Hunt, C. J., referring to the evidence rejected, "not to explain the meaning of particular terms or to prove attending circumstances, to enable the court to construe the agreement, but to change the rights of the parties to a contract. By the law, as I have interpreted it, the customer did not lose the title to his stock by any process less than a sale upon reasonable notice or by judicial proceedings. The broker had no right to sell without such a notice. A practice or custom to do otherwise would have no more force than a custom to protest notes on the first day of grace, or a custom of brokers not to 2 41 N. Y. 235.

Allen v. Dykers, 3 Hill, 593.