Martin, J.:
The plaintiffs seek to recover damages for a breach of warranty in the sale of merchandise consisting of 2,029 pounds of malachite green crystal dyes purchased from the defendant. The complaint alleges that in September, 1918, the plaintiffs purchased from the defendant the merchandise in question by sample exhibited by defendant, who warranted that the dyes would be in all respects equal to the sample. Plaintiffs assert that after delivery they discovered that the dyes were not as represented by defendant, but were of an inferior quality and practically worthless.
Defendant says that the sale was by description, and not by sample; that the dyes when delivered to plaintiffs in New York were of merchantable quality and equal in every respect to dyes of the same kind purchased by plaintiffs from defendant a month or two before the sale out of which this action arose. The evidence proved beyond question that the goods returned to New York from Kobe were not equal in quality to the sample and were not of a good quality or merchantable.
On the trial plaintiffs established that on the 16th day of May, 1918, they received the following letter:
“ Messrs. Shewan Tomes & Company,
“12 Broadway, New York City:
“ Dear Sirs.— In regard to your letter #16301 from Kobe, we enclose herewith a sample of Eagle Brand Malachite Green Crystals, on which we can quote you $8.50 per pound on one thousand pounds packed in barrels of 500 pounds.
“ You will please note that if these crystals have to be packed in tins, the extra cost will be as follows:
Material packed in 25 lb. tins $.15 per lb. extra '
“ “ “ 10 & 5 lb. “ .20 “ “ “
“ “ “ 1 lb. “ .25 “ “ “
“ We wish to draw the attention of your friends in Kobe to the fact that these are large Crystals, and of extremely good quality.
“ Trusting to receive your valued order,
“ Very truly yours,
“ JOHN C. SPARKS.”
By the terms of this letter it is plainly apparent that the defendant was endeavoring to obtain an order for dyes and submitted a sample in the hope of inducing a sale; not the sale of ten pounds as it is now argued, but the sale of a large quantity of dyes, for the letter says: “ we can quote you $8.50 per.pound on one thousand pounds, packed in barrels of 500 pounds.” The sale was after-wards made at eight dollars and fifty cents a pound and upon [399]*399the conditions set forth in this letter. The sale of ten pounds referred to herein was also made but at a higher price than here quoted.
Defendant on May 16, 1918, wrote to plaintiffs: “ I am sending you herewith by hand the samples of dyes and Malachite Green Crystals as per our letter and as per telephone conversation to-day.”
A witness produced by plaintiffs testified that a period of eight or ten weeks is necessary to send a letter to and receive a reply from Kobe, Japan. Parcel post packages require four or five weeks for delivery, and when goods are sent by express it requires about six weeks for them to reach Kobe. It was understood by the defendant that the sample should be sent to Kobe, Japan, for his letter says: “We wish to• draw the attention of your friends in Kobe to the fact that these are large Crystals, and of extremely good quality,”
That defendant was sending the sample to induce a sale, and was calling attention to the fact that the sample crystals were not only large but were of extremely good quality, cannot now be very seriously controverted.
Orders for the dyes in question were afterwards given as follows: 2,000 pounds on September 4, 1918; 750 pounds on September 20, 1918, and 2,000 pounds on October 8, 1918. Deliveries were made as follows: 35 packages, 245 pounds, on September 27, 1918; 34 packages, 238 pounds, on October 31, 1918; 89 packages, 546 pounds, on November 9, 1918, and 5 barrels, 1,000 pounds, on December 10, 1918, a total of 2,209 pounds. Prompt payments were made by plaintiffs immediately after each delivery, which refutes the assertion that this is an effort to avoid paying for the goods delivered. The remainder of the order was canceled by consent in a letter written by defendant to plaintiffs on December 30, 1918.
About the middle of November, shortly after the first shipment, promptly upon receipt of the goods, and after plaintiffs had fully paid for the installment received, plaintiffs’ house in Kobe, Japan, notified their New York house, by cable, that the goods were of an inferior quality. The New York house so notified defendant. Defendant on November 14, 1918, wrote to plaintiffs as follows:
“ In regard to the cable you have received from Kobe, in connection with the Malachite Green, we presume this is our invoice of September 27th. We have records of the material shipped and still have a sample of that shipment.
“We wish to inform you that the shipment is highest quality Malachite Green, and exactly the same as the sample shipped out [400]*400to you early in the Spring and the ten pound lot shipped early in August.”
It, therefore, appears that the defendant contended that the goods shipped were not only the highest quality of malachite green, but were exactly the same as the sample shipped «early in the spring. It is not necessary in order to establish a sale by sample to prove that the sample was exhibited each time an installment was ordered.
We are of the opinion that the plaintiffs by abundant evidence, some of it very important documentary evidence, established, that the sale was by sample.
In the case of Niehoff-Schultze Grocer Co. v. Gross (205 App. Div. 67, 75; affd., 237 N. Y. 509) Mr. Justice McAvoy, writing for this court, said: "Lord Macnaughten, in the leading case of Drummond v. Van Ingen (L. R. 12 A. C. 284, 297), gives forcefully the office of a sample in the sale of goods: ‘After all, the office of a sample is to present to the eye the real meaning and intention of the parties with regard to the subject-matter of the contract which, owing to the imperfection of language, it may be difficult or impossible to express in words. The sample speaks for itself.’
“ The Sales Act or Sales of Goods Act provides in section 97 of our Personal Property Law (as added by Laws of 1911, chap. 571) that the only warranties which a seller makes in a sale by sample are: (a) That the bulk shall correspond with the sample in quality, (b) that, with a certain exception not here applicable, the buyer shall have a reasonable opportunity of comparing the bulk with the sample, and (c) that the goods shall be free from any defect rendering them unmerchantable, which would not be apparent on reasonable examination of the sample, if the seller is a dealer in goods of that kind. Now, granting that it was a question for the jury to determine whether or not the sale in the case at bar was a sale by sample (Henry & Co. v. Talcott, 175 N. Y. 385, 389, 390), it was clearly the duty of the court to charge the jury that if they should find that this was a sale by sample, then the only warranties which the defendant made were those above enumerated.
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Martin, J.:
The plaintiffs seek to recover damages for a breach of warranty in the sale of merchandise consisting of 2,029 pounds of malachite green crystal dyes purchased from the defendant. The complaint alleges that in September, 1918, the plaintiffs purchased from the defendant the merchandise in question by sample exhibited by defendant, who warranted that the dyes would be in all respects equal to the sample. Plaintiffs assert that after delivery they discovered that the dyes were not as represented by defendant, but were of an inferior quality and practically worthless.
Defendant says that the sale was by description, and not by sample; that the dyes when delivered to plaintiffs in New York were of merchantable quality and equal in every respect to dyes of the same kind purchased by plaintiffs from defendant a month or two before the sale out of which this action arose. The evidence proved beyond question that the goods returned to New York from Kobe were not equal in quality to the sample and were not of a good quality or merchantable.
On the trial plaintiffs established that on the 16th day of May, 1918, they received the following letter:
“ Messrs. Shewan Tomes & Company,
“12 Broadway, New York City:
“ Dear Sirs.— In regard to your letter #16301 from Kobe, we enclose herewith a sample of Eagle Brand Malachite Green Crystals, on which we can quote you $8.50 per pound on one thousand pounds packed in barrels of 500 pounds.
“ You will please note that if these crystals have to be packed in tins, the extra cost will be as follows:
Material packed in 25 lb. tins $.15 per lb. extra '
“ “ “ 10 & 5 lb. “ .20 “ “ “
“ “ “ 1 lb. “ .25 “ “ “
“ We wish to draw the attention of your friends in Kobe to the fact that these are large Crystals, and of extremely good quality.
“ Trusting to receive your valued order,
“ Very truly yours,
“ JOHN C. SPARKS.”
By the terms of this letter it is plainly apparent that the defendant was endeavoring to obtain an order for dyes and submitted a sample in the hope of inducing a sale; not the sale of ten pounds as it is now argued, but the sale of a large quantity of dyes, for the letter says: “ we can quote you $8.50 per.pound on one thousand pounds, packed in barrels of 500 pounds.” The sale was after-wards made at eight dollars and fifty cents a pound and upon [399]*399the conditions set forth in this letter. The sale of ten pounds referred to herein was also made but at a higher price than here quoted.
Defendant on May 16, 1918, wrote to plaintiffs: “ I am sending you herewith by hand the samples of dyes and Malachite Green Crystals as per our letter and as per telephone conversation to-day.”
A witness produced by plaintiffs testified that a period of eight or ten weeks is necessary to send a letter to and receive a reply from Kobe, Japan. Parcel post packages require four or five weeks for delivery, and when goods are sent by express it requires about six weeks for them to reach Kobe. It was understood by the defendant that the sample should be sent to Kobe, Japan, for his letter says: “We wish to• draw the attention of your friends in Kobe to the fact that these are large Crystals, and of extremely good quality,”
That defendant was sending the sample to induce a sale, and was calling attention to the fact that the sample crystals were not only large but were of extremely good quality, cannot now be very seriously controverted.
Orders for the dyes in question were afterwards given as follows: 2,000 pounds on September 4, 1918; 750 pounds on September 20, 1918, and 2,000 pounds on October 8, 1918. Deliveries were made as follows: 35 packages, 245 pounds, on September 27, 1918; 34 packages, 238 pounds, on October 31, 1918; 89 packages, 546 pounds, on November 9, 1918, and 5 barrels, 1,000 pounds, on December 10, 1918, a total of 2,209 pounds. Prompt payments were made by plaintiffs immediately after each delivery, which refutes the assertion that this is an effort to avoid paying for the goods delivered. The remainder of the order was canceled by consent in a letter written by defendant to plaintiffs on December 30, 1918.
About the middle of November, shortly after the first shipment, promptly upon receipt of the goods, and after plaintiffs had fully paid for the installment received, plaintiffs’ house in Kobe, Japan, notified their New York house, by cable, that the goods were of an inferior quality. The New York house so notified defendant. Defendant on November 14, 1918, wrote to plaintiffs as follows:
“ In regard to the cable you have received from Kobe, in connection with the Malachite Green, we presume this is our invoice of September 27th. We have records of the material shipped and still have a sample of that shipment.
“We wish to inform you that the shipment is highest quality Malachite Green, and exactly the same as the sample shipped out [400]*400to you early in the Spring and the ten pound lot shipped early in August.”
It, therefore, appears that the defendant contended that the goods shipped were not only the highest quality of malachite green, but were exactly the same as the sample shipped «early in the spring. It is not necessary in order to establish a sale by sample to prove that the sample was exhibited each time an installment was ordered.
We are of the opinion that the plaintiffs by abundant evidence, some of it very important documentary evidence, established, that the sale was by sample.
In the case of Niehoff-Schultze Grocer Co. v. Gross (205 App. Div. 67, 75; affd., 237 N. Y. 509) Mr. Justice McAvoy, writing for this court, said: "Lord Macnaughten, in the leading case of Drummond v. Van Ingen (L. R. 12 A. C. 284, 297), gives forcefully the office of a sample in the sale of goods: ‘After all, the office of a sample is to present to the eye the real meaning and intention of the parties with regard to the subject-matter of the contract which, owing to the imperfection of language, it may be difficult or impossible to express in words. The sample speaks for itself.’
“ The Sales Act or Sales of Goods Act provides in section 97 of our Personal Property Law (as added by Laws of 1911, chap. 571) that the only warranties which a seller makes in a sale by sample are: (a) That the bulk shall correspond with the sample in quality, (b) that, with a certain exception not here applicable, the buyer shall have a reasonable opportunity of comparing the bulk with the sample, and (c) that the goods shall be free from any defect rendering them unmerchantable, which would not be apparent on reasonable examination of the sample, if the seller is a dealer in goods of that kind. Now, granting that it was a question for the jury to determine whether or not the sale in the case at bar was a sale by sample (Henry & Co. v. Talcott, 175 N. Y. 385, 389, 390), it was clearly the duty of the court to charge the jury that if they should find that this was a sale by sample, then the only warranties which the defendant made were those above enumerated. * * *
“ That the sale in the case at bar actually was a sale by sample, although the sample was exhibited to the plaintiff in connection with the purchase of the first lot of 100 bags and not in connection with the second lot of 400 bags, cannot be doubted. (Zabriskie v. Central Vermont R. R. Co., 131 N. Y. 72.)”
The defendant also contended upon the trial that irrespective of whether the sale was a sale by sample, the goods shipped were of the highest quality; that the goods returned were an inferior [401]*401article of very poor quality and in fact were fraudulent German dyes; that heat and moisture and the long distance that the goods were shipped, together with the delay caused by the return of the goods may have caused deterioration. Defendant also contended that the goods returned contained much foreign matter, were part dye and part sugar, with the result that they were of very little value.
Plaintiffs offered very convincing evidence that the goods at the time they were received were not in accordance with the contract requirements, and that they promptly notified the defendant of that fact upon receipt of the first installment. The largest shipment was made after the first complaint, thus giving defendant ample opportunity to fully inspect the goods before sending the remaining orders. It is apparent from the testimony that the ingredients found in the goods returned were not the ingredients which would have been found if the goods were equal in quality to the sample or of the very best quality as the goods shipped were asserted to be by the defendant. It was also proved by plaintiffs that the goods were examined immediately upon arrival and were then found to be of a very inferior quality; that plaintiffs before their arrival had the goods sold to a responsible customer at a substantial profit which in itself tended to prove that they had no ulterior motive for returning the goods. By a completely connected chain of testimony, apparently truthful, and which remained unshaken on cross-examination, they established the fact that the goods returned were the identical goods that had been shipped by defendant. In some instances the container in which the goods were shipped was returned unopened.
The evidence of expert witnesses relied upon by defendant, much of which was inadmissible because a proper foundation was not laid for its admission, was afterwards on cross-examination shown to be of little value. A chemist testified with reference to the ingredients, which testimony was apparently the result of an analysis, but he afterwards admitted he had not made an analysis. The short course taken to admit this evidence was unwarranted and clearly erroneous. No foundation was laid to prove how, where or when many of the tests, analyses or the dyeings produced by defendant were made. The following testimony is one of many instances of the manner in which the testimony was admitted: “ Q. Will you please state whether or not in the latter part of December Mr. Sparks gave you some samples of dyes which he said were taken from the bulk dye shipped to Shewan-Tomes and directed you to take them down to the United States Con[402]*402ditioning & Testing Company and have them analyzed by Dr. Pierce? A. He did. Q. Did you do that? A. I did. Q. In March, 1919, did you also take to the Union Laboratory a sample of dyes and ask them to dye cotton with them? A. Yes, sir. Q. And are those the dyeings — did you receive such dyeings from the Union Laboratory (handing sample to witness). A. Yes; they were just twice as large as those. Q. I beg pardon? A. They were just twice as large as those. Half of them have been cut in two and handed to Shewan-Tomes.”
By overwhelming evidence plaintiffs not only proved a sale by sample but also proved that the goods if sold by description were not in accordance with the description. (See Pers. Prop. Law, §§ 95-97, as added by Laws of 1911, chap. 571.)
The testimony was met by evidence which does not stand the necessary test to give it probative value. Much of the material evidence admitted on behalf of defendant, the value of which depends entirely on its source and authenticity, was not shown to be rehable.
Under the circumstances the verdict is against the weight of evidence.
The judgment should be reversed and a new trial ordered, with costs to the appellants to abide the event.
Clarke, P. J., and Finch, J., concur; Smith and Merrell, JJ., dissent.