I dissent. The sale was by sample and the rice, from which the sample was- taken was in existénce. . The plaintiff is -entitled to the benefit of his contract. He - acted honorably- with and did not *769practice a fraud upon the defendant, and has recovered no more than he is entitled to. He offered the best proof as to the damages which was available. .
The judgment is right and shonld be affirmed.
Judgment and order reversed and new trial granted, with costs to appellant to abide event.