J. W. Anderson Co. v. Tomlinson Chair Manufacturing Co.

BeogdeN, J. What duty is imposed upon the manufacturer of an article for sale by sample ? The judge of the municipal court charged the jury as follows : (1) “Now, the court charges you in a case of this nature where a contract is entered into between a buyer and a seller, where the goods must be manufactured, and where there is a sample presented for the *45 manufacture of the goods, that the manufacturer of the goods who contracts to manufacture the goods in accordance with the sample presented, warrants that the goods that he manufactures will be in a reasonable compliance or will be reasonably similar to the sample that is presented to him, that there will be a substantial duplication of the sample.” (2) “Now, the burden of proof in this case is upon the plaintiff to satisfy you by the greater weight of the evidence that it manufactured the goods which came up to the sample to 'a substantial and reasonable degree, to a degree that the goods made as a result of its receiving the sample could be used in the place of the goods in the sample; that there was a reasonable and substantial similarity in the goods manufactured and the sample that was presented to it at the time the contract was entered into.” (3) “That there was a duty on the plaintiff company to manufacture a fair specimen; that is, that it was a substantial duplication, a reasonable duplication in design, color and quality of the sample furnished to it.” (4) “And if you find that the goods were capable of being used as a substantial duplicate of the goods from which the samples came, and that there was not a material difference or variation in the goods made and shipped by the plaintiff and that represented by the samples, then the court charges you that would be a compliance with the contract and a refusal on the part of the defendant to accept the goods would be a breach of the contract.” 'A discussion of the various aspects of the law of sales by sample, together with the application of accepted principles to given facts, may be found in Jorgensen v. Gessell Pressed Bride Co., 141 Rac., 460; Greenwood Cotton Mill v. Tolbert, 89 S. E., 653; Perine Machinery Co. v. Buck, 156 Pac., 20. All the foregoing cases are reported in Ann. Cas., 1917C, 309 to 343. The Supreme Court of North Carolina has spoken upon the subject in Main v. Griffin, 141 N. C., 43, 53 S. E., 727, and Pickrell v. Wholesale Co., 169 N. C., 381, 86 S. E., 187. Quoting with approval from another jurisdiction, this Court said in the Pichrell case, suyra,: “Strictly speaking, a contract of sale by sample is not a warranty of quality, but an agreement of the seller to deliver, and of the buyer to accept, goods of the same kind and quality as the sample. The identity of the goods sold in kind, condition, and quality with that of the sample is of the essence of the contract; and where the goods sold do not correspond with the sample, there would seem to be no performance of the contract. The rule recognized in the cases as governing sales by sample seems to be founded on or to be a simple application of the principle that, to *46 fulfill a contract of sale, the seller must deliver that which he has agreed to sell, and that if he does not, the purchaser may rescind the contract, or receive the goods and claim a deduction for their relative inferiority in value.” Consequently the standard prescribed in this jurisdiction in sales by sample is that the seller must furnish “goods of the same kind and quality as the sample. The identity of the goods sold in kind, condition and quality with that of the sample is of the essence of the contract.” Obviously, if color was of the essence of the contract, the same rule would require that articles of the same kind, quality, condition and color should be furnished in order to discharge the obligation of the contract. The municipal judge used the expression “reasonable compliance,” or “reasonably similar,” “reasonable and substantial similarity,” “a fair specimen,” “substantial duplication,” or “reasonable duplication in design, color and quality.” These instructions, tested by the standard prescribed in our decisions, are too broad. It is apprehended that the correct rule as pronounced by this Court is that in sales by sample the seller must deliver goods of the same kind, condition, quality, design and color where any or all of these elements are of the essence of the contract. In view of the conclusion reached, it is not deemed necessary to discuss other exceptions in the record. New trial.