Mr. Justice Clark
delivered the opinion of the Court October 6, 1884.
The plaintiffs claim in this case is $296.22 for goods sold and delivered. The (defendants admit this claim to be correct, but interpose a set-off amounting to $212, with interest. This set-off arises out of a distinct transaction. The plaintiffs, and also the defendants, are dealers in fruits in the city of Philadelphia. On the 22d October, 1880, the defendants purchased of the plaintiffs, at thirty days’ credit, 100 boxes of unpared evaporated peaches, 5000 lbs., at 15 cents per lb., amounting to $750, and, at the expiration of the thirty days’ credit, paid the price stipulated. From sixty to ninety days after the purchase forty-seven boxes proved to be mouldy and damaged. The condition of this portion of the fruit having been submitted to arbitration, it was determined to be then [245]*245unmarketable. The defendants, by agreement, subséquently sold the forty-seven boxes, and now claim a loss of 8212 on them. This loss, with the interest, is the amount of the set-off.
The facts attending the purchase of the peaches are not seriously disputed.
The court, however, submitted to the jury, as a question of fact, whether the sale was by inspection or by sample. In this, wo think, there was error. There was no evidence to justify such a submission. If the testimony of the contracting parties is believed, the sale was certainly by inspection. It cannot he doubted that the intent of the parties, in such case, is in general a question for the jury; hut there is no evidence here of a sale by sample, nothing which could justify a jury in so finding. The goods, in bulk, were on band, and were exhibited to the buyer; their condition and quality were, it is admitted, readily ascertainable by inspection, and a full opportunity to that end was afforded. Mr. Selser offered to open, and did open and show, as many boxes as the vendee wished to see, and Mr. Roberts examined all that were opened. The buyer bought upon his own judgment; no representation as to quality or condition was made, no fraud is alleged, no warranty is shown. The parties were dealers only, not manufacturers or producers, no confidential relation existed between them, and the vendor’s means of knowledge were no greater than those of the vendee. It is true that three or four boxes only were opened, and these were examined as a specimen of the whole ; but they were all thrown open to inspection, and the buyer, after an examination of a-part, declared himself satisfied, and made the purchase. If it was inconvenient to examine all, the buyer, if still unsatisfied, should have protected himself by a warranty.
A sale of grain, or other commodity, in bulk, cannot be regarded as a sale by sample, simply because a portion only is exposed to view. If the bulk is thrown open to inspection, the buyer is considered to have inspected the bulk, and. not to have relied upon that only which is exposed to view as a sample. The intention of the parties in such case is to sell by inspection, not by sample.
This was, therefore, the sale of ascertained, specific goods, the title to which passed by the sale; there is no implied warranty of quality or condition; the buyer purchased upon his own judgment, and caveat emptor is the rule which governs the transaction. Carson v. Baillie, 19 Penna. St., 375 ; Barr v. Gibson, 3 M. & W., 390; Benjamin on Sales, and Wharton on Contracts.
Assuming, however, that a sale by sample was intended by [246]*246■the parties, and that such a sale is established by the verdiet of the jury, we cannot agree with the learned court below as to the legal effect of such a sale. It is certainly settled, in a long line of cases in Pennsylvania, that a sale of chattels by the production of a sample, without fraud or other circumstance fixing the character of the sample as a standard of quality, does not imply any warranty of quality. Differ as we may as to the policy or propriety of such a principle, we cannot deny that it is now recognized as the settled law of this State. Borrekins v. Bevan, 3 Rawle, 23; Jennings v. Gratz, Id., 169; Fraley v. Bispham, 10 Barr, 320; Whittaker v. Eastwich, 25 P. F. S.. 229; Boyd v, Wilson, 2 Norr., 319. “The sample'(as stated in the case last cited), under such circumstances, pure and simple, becomes a guaranty only that the article to be delivered shall follow its kind, and be merchantable, simply.”
The court very properly instructed the jury thus: “ The law in regard to sale by sample — I mean the law in Pennsylvania — is this: If you buy by sample the seller is not responsible for the goods; they need not correspond with the sample, except in kind; but the goods must be merchantable as that kind.” Thus far' the charge is clearly right, but in what follows it was as clearly wrong. The court, apparently by way of explanation, proceeds: “By merchantable, as that kind is meant that the goods may be of a quality very inferior to the sample, but they must be sound goods; they must not be damaged or spoiled, and must be fit for the use for which they are generally intended.” We agree that in a sale of goods by sample, in Pennsylvania, they must correspond with the sample in kind, and must be merchantable as that kind; but there is no implied warranty that they are “sound goods,” “not damaged or spoiled.” When goods have become unsaleable or unmerchantable they have ceased to be of the kind they originally were. A barrel of sound apples and a barrel of rotten apples are articles entirely different in kind, and the same may be said of a box of sound unpared evaporated peaches, and one so mouldy and decayed as to be unmerchantable as such. There is no warranty implied as to the different grades of quality so long as the identity of the goods in kind remains. To hold that a sale by sample, without more, imports a sale of sound goods not damaged or spoiled, would in some cases give the bulk a higher standard of excellence, in. quality or condition, than the sample itself. The degree of unsoundness which will support an assumpsit upon an implied warranty, must be such as destroys the merchantable character of the commodity sold, and converts it into an article substantially different in kind from that which [247]*247was sold. We apprehend that this was the instruction which the court intended to give, as the methods of illustration employed sustain this view; but the charge, as expressed, is susceptible of a very different construction, and is misleading in its tendency.
It further appears that after this controversy arose the parties, by agreement, referred the question of the then condition of' the fruit to arbitration. Two of the arbitrators were examined as to the nature of the reference. It was merely by oral agreement; but, according to a memorandum made at the time by the arbitrators, it was substantially as follows:
The arbitrators were to decide upon the present condition of the fruit, as to whether merchantable or not, but to have nothing to say as to who should bear the loss; Roberts & Co., to dispose of the goods; loss, if any, to be charged to “ loss account,” and the issue to await the result of a dispute, or case, between Thomas Roberts & Co. and M. Semple & Co. If this case is decided in favor of M. Semple & Co., Thos. Roberts & Co. to have no claim on Selser & Bro.; if decided in favor of Thos. Roberts & Co., Selser & Bro. agree to pay Thos. Roberts & Co. the amount of the loss, with interest.
The plaintiff, Mr.
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Mr. Justice Clark
delivered the opinion of the Court October 6, 1884.
The plaintiffs claim in this case is $296.22 for goods sold and delivered. The (defendants admit this claim to be correct, but interpose a set-off amounting to $212, with interest. This set-off arises out of a distinct transaction. The plaintiffs, and also the defendants, are dealers in fruits in the city of Philadelphia. On the 22d October, 1880, the defendants purchased of the plaintiffs, at thirty days’ credit, 100 boxes of unpared evaporated peaches, 5000 lbs., at 15 cents per lb., amounting to $750, and, at the expiration of the thirty days’ credit, paid the price stipulated. From sixty to ninety days after the purchase forty-seven boxes proved to be mouldy and damaged. The condition of this portion of the fruit having been submitted to arbitration, it was determined to be then [245]*245unmarketable. The defendants, by agreement, subséquently sold the forty-seven boxes, and now claim a loss of 8212 on them. This loss, with the interest, is the amount of the set-off.
The facts attending the purchase of the peaches are not seriously disputed.
The court, however, submitted to the jury, as a question of fact, whether the sale was by inspection or by sample. In this, wo think, there was error. There was no evidence to justify such a submission. If the testimony of the contracting parties is believed, the sale was certainly by inspection. It cannot he doubted that the intent of the parties, in such case, is in general a question for the jury; hut there is no evidence here of a sale by sample, nothing which could justify a jury in so finding. The goods, in bulk, were on band, and were exhibited to the buyer; their condition and quality were, it is admitted, readily ascertainable by inspection, and a full opportunity to that end was afforded. Mr. Selser offered to open, and did open and show, as many boxes as the vendee wished to see, and Mr. Roberts examined all that were opened. The buyer bought upon his own judgment; no representation as to quality or condition was made, no fraud is alleged, no warranty is shown. The parties were dealers only, not manufacturers or producers, no confidential relation existed between them, and the vendor’s means of knowledge were no greater than those of the vendee. It is true that three or four boxes only were opened, and these were examined as a specimen of the whole ; but they were all thrown open to inspection, and the buyer, after an examination of a-part, declared himself satisfied, and made the purchase. If it was inconvenient to examine all, the buyer, if still unsatisfied, should have protected himself by a warranty.
A sale of grain, or other commodity, in bulk, cannot be regarded as a sale by sample, simply because a portion only is exposed to view. If the bulk is thrown open to inspection, the buyer is considered to have inspected the bulk, and. not to have relied upon that only which is exposed to view as a sample. The intention of the parties in such case is to sell by inspection, not by sample.
This was, therefore, the sale of ascertained, specific goods, the title to which passed by the sale; there is no implied warranty of quality or condition; the buyer purchased upon his own judgment, and caveat emptor is the rule which governs the transaction. Carson v. Baillie, 19 Penna. St., 375 ; Barr v. Gibson, 3 M. & W., 390; Benjamin on Sales, and Wharton on Contracts.
Assuming, however, that a sale by sample was intended by [246]*246■the parties, and that such a sale is established by the verdiet of the jury, we cannot agree with the learned court below as to the legal effect of such a sale. It is certainly settled, in a long line of cases in Pennsylvania, that a sale of chattels by the production of a sample, without fraud or other circumstance fixing the character of the sample as a standard of quality, does not imply any warranty of quality. Differ as we may as to the policy or propriety of such a principle, we cannot deny that it is now recognized as the settled law of this State. Borrekins v. Bevan, 3 Rawle, 23; Jennings v. Gratz, Id., 169; Fraley v. Bispham, 10 Barr, 320; Whittaker v. Eastwich, 25 P. F. S.. 229; Boyd v, Wilson, 2 Norr., 319. “The sample'(as stated in the case last cited), under such circumstances, pure and simple, becomes a guaranty only that the article to be delivered shall follow its kind, and be merchantable, simply.”
The court very properly instructed the jury thus: “ The law in regard to sale by sample — I mean the law in Pennsylvania — is this: If you buy by sample the seller is not responsible for the goods; they need not correspond with the sample, except in kind; but the goods must be merchantable as that kind.” Thus far' the charge is clearly right, but in what follows it was as clearly wrong. The court, apparently by way of explanation, proceeds: “By merchantable, as that kind is meant that the goods may be of a quality very inferior to the sample, but they must be sound goods; they must not be damaged or spoiled, and must be fit for the use for which they are generally intended.” We agree that in a sale of goods by sample, in Pennsylvania, they must correspond with the sample in kind, and must be merchantable as that kind; but there is no implied warranty that they are “sound goods,” “not damaged or spoiled.” When goods have become unsaleable or unmerchantable they have ceased to be of the kind they originally were. A barrel of sound apples and a barrel of rotten apples are articles entirely different in kind, and the same may be said of a box of sound unpared evaporated peaches, and one so mouldy and decayed as to be unmerchantable as such. There is no warranty implied as to the different grades of quality so long as the identity of the goods in kind remains. To hold that a sale by sample, without more, imports a sale of sound goods not damaged or spoiled, would in some cases give the bulk a higher standard of excellence, in. quality or condition, than the sample itself. The degree of unsoundness which will support an assumpsit upon an implied warranty, must be such as destroys the merchantable character of the commodity sold, and converts it into an article substantially different in kind from that which [247]*247was sold. We apprehend that this was the instruction which the court intended to give, as the methods of illustration employed sustain this view; but the charge, as expressed, is susceptible of a very different construction, and is misleading in its tendency.
It further appears that after this controversy arose the parties, by agreement, referred the question of the then condition of' the fruit to arbitration. Two of the arbitrators were examined as to the nature of the reference. It was merely by oral agreement; but, according to a memorandum made at the time by the arbitrators, it was substantially as follows:
The arbitrators were to decide upon the present condition of the fruit, as to whether merchantable or not, but to have nothing to say as to who should bear the loss; Roberts & Co., to dispose of the goods; loss, if any, to be charged to “ loss account,” and the issue to await the result of a dispute, or case, between Thomas Roberts & Co. and M. Semple & Co. If this case is decided in favor of M. Semple & Co., Thos. Roberts & Co. to have no claim on Selser & Bro.; if decided in favor of Thos. Roberts & Co., Selser & Bro. agree to pay Thos. Roberts & Co. the amount of the loss, with interest.
The plaintiff, Mr. Selser, gave substantially the same statement as to the terms of the reference. The only other persons present at the time were the remaining arbitrator, Mr. Githens, and one of the defendants, Mr. Thomas Roberts,, neither of whom were examined on the subject.
Referring to this agreement, the court charged the jury as-follows: “ The plaintiffs claim that it was agreed at the time of the arbitration that defendants should sell the fruit, and, if any loss, charge it to loss account, the issue to await the-result of a dispute between the defendants and M. Semple & Co. If that case was decided in favor of M. Semple & Co., defendants to have no claim on plaintiffs, and if decided in favor of defendants, plaintiffs to pay defendants the loss,, with interest, and that this suit is not yet decided. On the-other hand, the defendants claim that the issue was to depend on the result of another case in dispute between the defendants and the Dover Packing Company. If you should believe that the agreement was to depend on the decision in the case of defendants and M, Semple & Co., you will reject defendants’ claim of set-off. If, however, you should believe that it was to depend on the decision of the other case, the Dover Packing Company case, and that case has been decided in favor of defendants, then you will allow the set-off. This is-a-question for you.”
There was some evidence of a suit or controversy between [248]*248Roberts & Co. and Semple & Co., but there was none whatever as to any such suit with the Dover Packing Company. Some such allusion was made by counsel in the cross-examination of Mr. Selser, but there was no testimony on that subject. The jury should not have been instructed to find a fact of which there was absolutely no proof.
The judgment is reversed, and a venire facias de novo awarded.