#### PICKRELL & CRAIG COMPANY v. WILSON WHOLESALE COMPANY.

(Filed 15 September, 1915.)

1. Vendor and Purchaser — Contracts—Parol Evidence — Warranty Implied.

Where the written contract, signed by the purchaser, specifies that a cap sold for fruit jars will fit any “Mason jar,” and that the terms of the contract shall not be varied by any promise or agreement not specified in the written order, a representation made by the sales agent, to the purchaser, at the time of a demonstration by him of its truth, and as an inducement to buy, that the cap sold would lit all of the Mason jars in his store, does not violate this special stipulation.

2. Vendor and Purchaser — Sale by Sample — Implied Warranty — Breach—Evidence.

While a warranty of goods which are sold in bulk by sample implies only that the bulk will come up to the sample, when the seller adopts the sample as his own description of the bulk, upon which the purchase is made, this rule does not apply when the sample is only used by the seller to demonstrate that his wares will accomplish a certain purpose, which he warrants them to do; for then it is open to the purchaser to show that the wares were not as represented, though the bulk corresponds in kind and quality with the sample, it being more than a sale by sample.

3. Same — Demonstration by Sample.

Where a certain kind of cap for sealing fruit jars is sold under a written and signed order, with the warranty that they will fit any “Mason jars,” and the vendor’s salesman has guaranteed that they would fit any Mason jars in the purchaser’s store, and actually fitted several of the caps to the jars to prove that they would do so, it is competent for the purchaser to show that he had, at the time a quantity of Ball-Mason jars which the cap would not fit or properly seal; and upon conflicting evidence the issue should be submitted to the jury, there being evidence that the caps would not fit all Mason jars, as warranted.

Appeal by defendant from Carter, J., at June Term, 1915, of Wil-SON.

This action was brought to recover $130 and interest due for a lot of White Crown jar caps sold and delivered to tbe defendants. The *382evidence tended to show tbat tbe plaintiffs botb verbally and in tbe written order of sale represented and warranted tbat tbe caps would fit any Mason jar, in wbicb tbe defendants dealt, and to convince tbe defendants tbat tbis was true, plaintiffs’ agent, before tbe order was given, fitted several' of tbe caps be tben bad in bis possession to Mason jars selected from defendants’ stock. In tbe body of tbe order are these words: “White Crown Caps. Self-sealing. Fits any Mason Jar. Experience not necessary.” Defendants signed tbe order and delivered it to plaintiff’s agent, and afterwards, and before tbe caps were received by tbe defendants, tbe plaintiffs sent out samples of tbe caps, as corresponding with those to be shipped. These were tried by tbe agent of defendants who gave tbe order, and found to be defective, in tbat they would not fit many of tbe Mason jars in defendants’ stock. Tbis was due to tbe fact tbat tbe Ball-Mason jars, wbicb defendants carried in their stock, are made to receive tbe cap and seal at tbe shoulder, while tbe White Crown jar caps seal at tbe top, and tbe value of tbe cap Tor making an air-tight seal depended upon tbe smoothness of tbe upper surface, wbicb was immaterial if tbe sealing was done at tbe shoulder of tbe jar as in tbe case of tbe Ball-Mason jars. There was evidence tbat “all Mason jars are of exactly tbe same pattern and sealed in tbe same way as those made by Ball Brothers.” It is stated in tbe case tbat plaintiffs’ witness Finis Fox, while on tbe stand, “proceeded to seal tbe Mason jars in question with tbe caps shipped to defendants.” Defendants objected to tbis evidence.

When defendants discovered tbat tbe testing.samples sent out by tbe plaintiffs would not fit many of tbe Ball-Mason jars in their stock, they refused to receive tbe shipment, and, therefore, tbis action was brought to recover tbe price agreed to be paid for tbe goods.

Tbe court charged tbe jury as follows: “It appears from tbe evidence in tbis case tbat these goods were sold by sample. There is no evidence in tbe case tbat tbe goods shipped were not up to tbe sample, and there is no evidence of any other concealment. Tbe court, therefore, instructs you tbat you will answer tbe issue $130, with interest from IS May, 1913, if you believe tbe evidence' in tbe case. Of course, if you don’t believe tbe evidence, you will answer tbe issue Nothing.’ ”

Tbe jury returned a verdict in favor of tbe plaintiffs for $130, with interest from 15 May, 1913. Judgment was entered thereon, and defendants appealed.

F. B. Swindell for plaintiffs.

Woodard & Hassell for defendants.

Walker, J.,

after stating tbe case: Tbe court held tbat tbis was a sale of goods by sample, ignoring tbe express terms of tbe written con*383tract, which, warranted that the goods should be of a certain kind, or caps, that would fit any Mason jar. The prior negotiations of the parties were merged in the written contract, which provided that the sellers would ship the goods “on terms and conditions specified below,” one of which was that the caps would fit any Mason jar, and another is, that “No promise or agreement is valid unless specified on this order,” and still another, that “No salesman has authority to alter terms or conditions printed on this contract, or to promise anything that is not printed on our contracts.” This was the contract, and the only one between the parties recognized by the plaintiff. It is well settled that where parties have reduced their contract to writing, the written instrument itself is the exclusive evidence of it, and neither of the parties will be permitted to vary or contradict its terms by parol. 9 Cyc., 763; Moffitt v. Maness, 102 N. C., 457. There is no reference in this contract to a sale by sample. We imagine that if it were to the advantage of the defendants to restrict the inquiry here to what occurred between the two agents prior to the signing of the order, the plaintiffs would have insisted upon a strict adherence to the terms of the contract as expressed in the writing; and well could they have done so.

There was some evidence of the breach of the contract or condition that the caps would fit any Mason jar. It is stated in the record that plaintiffs’ witness “proceeded to seal the jars in question with the White Crown jar caps sold by the plaintiffs,” but this expression is not very clear, and he may have referred, and perhaps did refer, to jars known as Mason jars and of the same kind as those kept by defendants in their stock for sale, and did not intend to say that he fitted the caps to the particular Mason jars which defendants then had in stock. But whatever his meaning was, and whether or not the caps used by the witness did fit the jars also used by him, which is not clearly made to appear, there was some evidence that the caps shipped to defendant did not fit the Mason jars in defendants’ stock, as plaintiffs sent out a lot of samples, upon the implied representation, at least, that they corresponded exactly with those to be shipped, and for the purpose of testing the truth of their representation or warranty that those to be shipped would fit any Mason jars.

But apart from this consideration, it is not to be assumed that every sale where a sample is shown is a sale by sample. There must be an understanding of the parties, express or implied, that the sale is by sample. Tiffany on Sales, p. 174. The Court in Gunther v. Atwell, 19 Md., 157, at pp. 167 and 168, well stated the rule and the reason for it: “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 *384of tbe 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 fulfill a contract of sale, the seller must deliver that which hé 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. In order that this principle may be applied, it is necessary, in making the sale, that the sample should be so used between the buyer and seller as to express or become a part of the contract; or, in other words, that the sample should amount to and take the place of an express averment by the seller of the condition and quality of the goods sold, upon which the buyer relies in making the purchase. The mere exhibition of a sample by the seller, and examination of it by the buyer, does not amount to such an everment, unless, from all the facts or circumstances in the case, it can be presumed that an understanding is arrived at between the parties that the bulk is to correspond with the sample. Citing several cases. The reasonable deduction from these cases is that to effect a sale by sample, so as to bind the seller for a correspondence in bulk, it must be shown that the seller adopts the sample as his own description of the bulk, and that the buyer concludes the purchase upon the faith and credit of the description so given. Upon this theory, it is obvious that in making sales samples may be exhibited and examined without implying, as a part of the contract of sale, any obligation that the bulk shall correspond with the sample. Gunthrell v. Atwell, supra; Day v. Raguet, 14 Minn., 273; Hargous v. Stone, 5 N. Y., 73.

There is evidence in this case that the caps were used by plaintiffs’ agent in the beginning of this transaction, not for the purpose of selling other caps by them as samples, but for quite a different purpose, and that was to demonstrate to the defendants that the White Crown caps would fit any Mason jar. This will appear from the testimony of defendants’ witness N. T. Peele, who said: “Plaintiffs’ salesman represented that the White Crown jar caps sold by the plaintiffs, as jobbers, would fit any Mason jar. He then and there proceeded to demonstrate this fact by sealing a number of Mason jars taken from defendants’ stock with the White Crown jar caps in. his possession. After witnessing the demonstration aforesaid, defendants’ employee, N. T. Peele, signed an order on a printed order form in which the terms and conditions of the purchase were set forth.” But when the sale is by sample, it is implied in law that the bulk shall correspond in kind and quality with the sample, and the reason for this implication is that there is no opportunity *385for a personal examination of tbe bulk. Tiffany on Sales, p. 174. There was evidence that tbe caps exhibited and used by plaintiffs’ agent for tbe alleged demonstration of their quality and fitness for tbe particular use mentioned at the time did not correspond with tbe standard of comparison so used, for tbe plaintiffs’ witnesses testified that many of tbe caps sent out by tbe plaintiffs were tried on tbe Mason jars of tbe Ball Brothers type, which were carried in defendants’ stock of goods, and they did not fit, nor would they seal perfectly or as tbe agent of plaintiffs represented they would.

Tbe demonstration by plaintiffs’ witness at tbe trial may have been very impressive, and (perhaps) convincing, but its weight as evidence was for tbe jury, and, besides, it should not have been considered to tbe exclusion of other evidence in tbe cause.

In this state of tbe evidence we are of tbe opinion that there was a conflict, and it was. erroneous to charge tbe jury that, even if they believed tbe evidence, their verdict should be for tbe plaintiff.

There was error, therefore, in tbe trial of tbe case.

New trial.