Hughes v. Bray
Synopsis
Warranty—Sale by Sample.—Where goods are sold by sample the law implies a warranty that the article shall not be inferior in quality to the sample; and if they are, the purchaser may accept them, and bring an action for the breach of warranty.
Id.—Id.—Measure oe Damages.—In an action for breach of warranty of the quality of barley sold by defendant to the plaintiff, the Court instructed the jury in effect that the measure of damages was the difference between the market value of the barley actually delivered, and the market value of an equal quantity of barley of the same quality as the sample at the time of delivery.
Held: The charge was in accordance with the rule contained in Section 3313, Civil Code.
Id.—Id.—Custom—Usage.—The defendant offered to prove the existence of a general custom and usage among the grain dealers in San Francisco that sales of grain by sample are not considered complete until the buyer has actually inspected and accepted the grain sold. Held: The evidence was properly rejected.
The Court: The exception upon which the appellant seems mainly to rely is to that portion of the charge in which the Court in effect told the jury: That where goods are sold by sample the law implies a warranty that the articles shall not be inferior in quality to the sample, and that if they are the purchaser may accept them and bring an action for the breach of warranty. Such we understand to be the law. (Polhemus v Heiman, 45 Cal. 573.)
The charge as to the measure of damages was in accordance with the rule contained in the Code. (C. C. 3313). Evidence of what the usage or custom in San Francisco was as to sales by sample, was properly rejected. (Polhemus v. Heiman, 50 Cal. 438, 441).
The instructions asked by the defendant contradicted those given and excepted to, and there was no error in refusing to give them.
There was some conflict in the evidence upon the main issue, and it appears to have been fairly submitted to the jury.
Judgment and order affirmed.
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