Germain Fruit Co. v. J. K. Armsby Co.

SHAW, J.

I concur in the judgment, on the authority of the decision in

Gardiner

v.

McDonogh,

147 Cal. 313, [81 Pac. 964]. I do not agree to all that is said in the opinion adopted by the court, as I understand it. I can conceive of a sale of goods in bulk, of varying quality, in which the different qualities might be represented by samples shown to the purchaser, the goods being absent, and in which an estimate would be made by the seller of the quantities of each kind comprised in the whole bulk corresponding to the samples shown, the samples being marked as “lot A,” “lot B,” etc. In such a case a writing, such as that here in question, purporting to agree to sell “500 boxes lot A, and 600 boxes lot B,” if construed with reference to the circumstances attending its execution, would properly be held to mean that a sale was made of 500 boxes of the quality of the sample marked as lot A and 600 boxes of the quality of the sample marked as lot B. Such evidence would, in my opinion, be competent to point the meaning of the writing. I do not believe that the opinion intends to express anything contrary to this, but I think some of its language might be so understood. The evidence admitted by the court below and here held incompetent, however, shows a mere sale by sample and, according to that evidence, the designations “lot A,” etc., refer to certain

[597]

lots stored in a warehouse and not to the respective samples exhibited to the purchaser. The ease falls precisely within the rule established in

Gardiner

v.

McDonogh,

which is now to be considered as the settled rule of this court.