Coates & Sons Ltd. v. Cook & Co.

Cobb, J. Where goods are sold by a sample, and the goods delivered are found to correspond with the sample, the buyer is bound to pay for them, even though there be a defect in the goods which would affect their value, provided such defect was in the sample and was patent, or could have been discovered by the exercise of ordinary care. But where the sample, which is the basis of the sale, is infected with a latent defect which could' not be discovered by the exercise of ordinary diligence, the buyer is not bound to pay for the goods, if the defect renders the article entirely worthless, although the goods delivered to him correspond exactly in appearance and quality with the sample. This is true in every case of sale by a sample, unless the terms of the contract are to the contrary, 'or from the nature of the transaction the buyer would be estopped from setting up such defense. The implied warranty of the law, which is set forth in section 3555 of the Civil Code, applies to sales by sample as well as to other sales. 10 Am. & Eng. Encyclo. of Law, p. 167 ; 2 Benjamin on Sales, pp. 851, 873-874. Judgment affirmed. All the Justices concurring.