184. PtULE OF BUYING BY SAMPLE, 



objot'tinc to the o-oods lio still rotain,R them, lie is boniirl to pay for 

 tlicm, making such a deduction as he may be entitled to by reason of 

 tlieir reduced value." The case of a sale of s}wci/ic fjooch, irilh a ivar- 

 ranty tlutt fhcij icere equal to the sample, ^vas considered in Cormack v. 

 GiJIis (where the plaintilf was a seedsman, and the defendant a gardener), 

 and much more recently in Dau'son v. CuUis. In the latter case a plea 

 that the defendants made the promise in resjtect of 31 pockets of hops 

 bargained and sold by the plaintiff to the defendants ; and that at the 

 time of the promise the plaintiff produced and showed defendants a 

 sample, and promised to deliver hops equal thereto, &c., but that the 

 liojis were not equal to the sample, and that therefore they refused to 

 accept them, was held bad on special demurrer, as amounting to no7i 

 assumpsit. Jervis C.J. said, " This plea is no answer to the action. I 

 am inclined to think, according to the principle of Street v. Btay, that 

 on the sale of a specific article (as alleged ,in this plea) the buyer has 

 no right to repudiate the article if it does not correspond with the 

 sample, but that his proper remedy is to bring a cross action on the 

 warranty, or to set up the breach in reduction of damages. But it is 

 unnecessary here to express any opinion upon that point, because if 

 proof of the warranty on the part of the plaintiff" be a necessary condition 

 of his recovering, there is no promise on the part of the defendant to 

 pay, unless the specific article corresponds with the sample, and that is 

 a defence under non assumpsit. The case of Parsons v. Sexton is ex- 

 pressly in point, except that there was no delivery of the steam-engine." 



And 2^c^' Md^l^ J. : " It seems to me that the princi])le of Street v. 

 Blay ought to be extended, and that the just and convenient thing is, 

 that the vendee should have an action for the breach of the warranty, 

 or that he should give it in evidence in reduction of damages, as in 

 Allen V. Cameron and several other cases" {ih.). But where, as in 

 Sieveking v. Button, the defendant pleaded to a count upon a contract 

 by him to receive a certain quantity of wool of merchantable quality 

 from the plaintiffs at a certain price, that at the time of malcing the con- 

 tract the plaintiffs proclvced a sample, and po'omised him that the hulk icas 

 equal in quantity and description thereto, hut that the wool ivhen tendered 

 was found to he of an inferior quality, wherefore he refused to accept it — 

 the Court of Common Pleas held that the plea was not bad on special 

 demurrer, as amounting to non assumpsit, inasmuch as the contract 

 therein set up was not necessarily incompatible with the contract 

 declared on. And per Mavle J. : " If issue were taken on the tender, 

 the plaintiffs would fail, unless they proved a tender of wool of the 

 quality and description ordered " {ih^. 



A custom of the Liverpiool 'corn market, that wlien corn is sold hy 



