Counsel for appellee have filed a strong and persuasive motion for rehearing. While not convinced that we were in error in our original opinion, there are certain phases of the argument on rehearing which we desire to discuss.
We stated that the sale in question was admittedly one by sample, and, in effect, that the chief questions on the appeal were whether there had been a waiver of the right of inspection by the buyer, or a final acceptance, after full inspection.
It now appears that this statement was too broad, since the appellee did not plead a sale by sample and does not admit that such was the character of the sale. The statement was made in the original opinion, because the respective propositions in the briefs seemed to so treat the transaction. Be this as it may, appellant did plead a sale by sample, and offered evidence tending to support the theory. Hence the issue was raised by the pleadings and the evidence.
Appellee has cited cases to the effect that the mere exhibition of a specimen of goods, during a negotiation for their sale, *Page 863 does not necessarily make a sale by sample, but it must appear that the parties understood that they were dealing with reference to the sample. We do not doubt the correctness of this rule, and there is nothing in our opinion to the contrary. We simply held that there was evidence sufficient to make it a jury question whether the sale was by sample, and whether there was a waiver of inspection or final acceptance after inspection.
It is earnestly insisted that the undisputed evidence showed that, if there was any sale by sample, it was when the samples were taken and exhibited to I. E. Ellis at Quanah, when he ordered the cotton shipped and drew the drafts in payment; furthermore, that the undisputed evidence shows that W. L. Ellis Co. waived inspection and committed the question of the grade or quality of the cotton, tendered for delivery, to the judgment of Mr. Kelly, who was the "spot cotton man" of appellee.
We will not undertake to set out the evidence in detail. As stated in the original opinion, there was ample evidence to raise these issues. Mr. Kelly testified that, at the request of I. E. Ellis, he made up and sent samples of "type 9" cotton to Brownwood long before the sale was made, for the examination and inspection of W. L. Ellis at Brownwood. He also testified that he kept a duplicate of that type at the Quanah office, and that the 88 bales came up to the type he had sent to Brownwood. Further, he testified that the 100 bales in controversy were bought by the same type that the 500 bales of the same character of cotton had previously been bought. A fair inference is that he meant the original type samples which he had sent to Brownwood.
The testimony of L E. Ellis is to the same effect, and tends strongly to show that the cotton was bought by the samples originally sent to appellants' office at Brownwood. The testimony of W. L. Ellis tends to show that he understood the original samples were to be used for comparison with the cotton tendered for delivery.
I. E. Ellis also testified that the samples exhibited to him at Quanah were sent to W. L. Ellis for comparison with the original samples. It is contended by appellee's counsel that this testimony is nullified by his further statement that nothing was said before or at the time as to the purpose of sending the latter samples to Brownwood. We do not think so. If there was a conflict here, which does not necessarily appear, it was properly a matter for the jury.
As to the issue that there was a waiver of the right of inspection and an agreement to leave the question of quality up to Mr. Kelly, as the representative of W. L. Ellis Co., or a final acceptance through I. E. Ellis, after inspection of true samples of the cotton actually shipped, we repeat that the evidence raises a jury question. We again call attention to Mr. Kelly's testimony that he made no effort to pass on type 9 cotton for I. E. Ellis; also to the testimony of the latter that he made no inspection of the samples, was not qualified to do so, and had the last-drawn samples sent to W. L. Ellis for comparison by him.
Our opinion is also assailed because we held that the evidence raised the issue as to whether appellee might have lessened the damages by making a resale more promptly, and not on a holiday. We agree with appellee that the evidence strongly tends to show that no damage was caused by any delay, but it is not conclusive. There was evidence that there was a rise in the market for regular grades between the date the cotton was rejected and the date of sales. True, it was agreed that this cotton brought the best price obtainable on the day of sale, but this does not conclude the question. The regular market affects or influences the price for low-grade cotton to some extent. Therefore the sale on a holiday, when there was no regular market, and perhaps the failure to sell on an earlier day or at a more favorable time, might have affected the amount of damages. Of course, we cannot tell what the evidence will be on another trial, but we have sufficiently indicated our view of the matter.
Appellee insists that our opinion lays down a very dangerous rule, as applied to the cotton business, as it opens the doors to fraud by unscrupulous speculators. Specifically, the claim is that a buyer of cotton may order cotton, and then, after delivery, accept or reject it, accordingly as the market fluctuates in his favor or against him. In this we see nothing more than inheres in every sale by sample. If the vendor has properly protected himself in the terms of the sale, he would appear to be safe against fraud, if he only sees to it that the goods he delivers are what he impliedly represented by the samples exhibited.
Believing that the appeal has been correctly decided, the motion for rehearing is overruled.
Motion overruled.
*Page 864KEY, C.J., not sitting,