Opinion
No. 36317
Decided June 1, 1960.
Sales — May be found to have been by sample — Although no bulk from which sample could have been taken — Sale of specialty advertising signs to be manufactured — As per handmade prototype — May be sale by sample within statute.
1. A sale may be found to have been a sale by sample, within the meaning of statutory provisions such as Section 1315.17, Revised Code, although there was in existence no bulk from which the sample could have been taken either at the time the supposed sample was exhibited to the purchaser or at the time of such sale.
2. The sale of specialty advertising signs to be manufactured by the seller as per handmade prototype exhibited to the purchaser may be a sale by sample within the meaning of Section 1315.17, Revised Code.
APPEAL from the Court of Appeals for Hamilton County.
This action was instituted in the Common Pleas Court of Hamilton County to recover the price agreed to be paid for certain signs ordered by defendant from plaintiff.
The parties waived a jury and the cause was heard by the court which found for the defendant and, on request, stated in writing its conclusions of fact and law which read, so far as pertinent:
"Separate finding of fact.
"* * * plaintiff is * * * engaged in the manufacturing and sale of specialty advertising products, * * * defendant is * * * engaged in the manufacturing and sale of beer * * *; * * * on or about the 15th * * * of March 1958, the parties entered into an oral agreement whereby * * * plaintiff was to manufacture and deliver, as per sample exhibited and supplied by * * * plaintiff to the defendant, a lot consisting of 1,500 advertising specialty signs for which defendant * * * was to pay * * * $1,125; * * * on or about the 26th of May, 1958, plaintiff delivered to defendant 128 signs; * * * said signs did not correspond to the sample as previously exhibited and supplied to defendant; * * * said signs were defective and unfit for the purpose to which both plaintiff and defendant intended them to be used; * * * defendant notified plaintiff that said signs were defective and elected to rescind said contract, refused all further deliveries under the same, and tendered back the unused defective signs.
"Conclusions of law.
"* * * The court finds * * * plaintiff breached its warranty * * * contrary to Section 1315.17, Revised Code * * *; that defendant had the right to and did rescind said contract by virtue of Section 1315.70 of the Revised Code * * *."
Section 1315.17, Revised Code, reads:
"In the case of a contract to sell or a sale by sample:
"(A) There is an implied warranty that the bulk shall correspond with the sample in quality.
"(B) There is an implied warranty that the buyer shall have a reasonable opportunity of comparing the bulk with the sample, except as otherwise provided in Sections 1315.01 to 1315.76, inclusive, of the Revised Code.
"(C) If the seller is a dealer in goods of that kind, there is an implied warranty that the goods shall be free from any defect, rendering them unmerchantable, which would not be apparent on reasonable examination of the sample."
The Common Pleas Court rendered judgment for defendant and that judgment was affirmed by the Court of Appeals.
The cause is now before this court on appeal from the judgment of the Court of Appeals, pursuant to allowance of plaintiff's motion to certify the record.
Mr. James S. Simmonds and Mr. Charles J. Chastang, for appellant.
Messrs. Shannon, Herbold Clark, for appellee.
The first question raised by plaintiff is whether the sale of specialty advertising signs to be manufactured by the seller as per handmade prototype exhibited to the purchaser may be a sale by sample within the meaning of Section 1315.17, Revised Code.
There is much evidence to the effect that, in their dealings, both parties regarded that prototype and referred to it as a sample. However, plaintiff argues that there can be no "sale by sample" within the meaning of Section 1315.17, Revised Code, unless there is, at the time the supposed sample is exhibited to the purchaser, a bulk in existence from which the sample was taken. Admittedly, the signs to be sold in the instant case were not in existence when the sample was exhibited and when the contract of sale was made.
The weight of authority supports the conclusion that a sale may be found to have been a sale by sample, within the meaning of statutory provisions such as Section 1315.17, Revised Code, although there was in existence no bulk from which the sample could have been taken either at the time the supposed sample was exhibited to the purchaser or at the time of such sale. See 1 Williston on Sales (Rev. Ed.), 664, Section 250, annotation 12 A.L.R. (2d), 524, 552. Any other conclusion would be difficult to reconcile with our own holding in Dayton v. Hooglund, 39 Ohio St. 671.
In its brief, "plaintiff admits that if the sale had been by sample and the goods as delivered did not conform to the sample exhibited then the conclusion of law by the trial court would have been correct and the purchaser * * * would have had the legal right to arbitrarily rescind the contract of purchase on the ground that the bulk did not correspond to the sample submitted." In view of this admission and our conclusion with respect to the first question raised by plaintiff, the judgment must be affirmed.
Judgment affirmed.
WEYGANDT, C.J., ZIMMERMAN, MATTHIAS, BELL, HERBERT and PECK, JJ., concur.