I am unable to agree with a majority of the court that the verdict of the jury in this case was against the weight of the evidence and that the judgment entered thereon should be reversed and a new trial granted. A careful examination of the entire testimony has convinced me that the jury was amply justified in reaching the verdict that it did. It saw the witnesses and was best able to pass upon the credibility of their testimony. Unless we are to substitute our opinion, drawn from the record, for that of the jurors who saw the witnesses and heard the testimony, we should not disturb their finding.
The testimony upon the trial presented two issues of fact, which were submitted to the jury by the trial court in a fair charge to which no exception of moment was taken. The first issue was as to whether the goods were sold by sample, and second, if they were, whether the goods delivered were up to the sample. The jury found a verdict generally in favor of the defendant, upon which judgment was entered dismissing the plaintiffs’ complaint, with costs. Upon the whole evidence in the case, I am of the opinion *403that the jury was justified in finding a verdict for the defendant, and that by a great preponderance of evidence it satisfactorily appears not only that the goods in question were not sold by sample, as claimed by the plaintiffs, but that, if sold by sample, the goods delivered were up to sample, and that any fault therein came from deterioration resulting from transportation and climatic conditions in connection with their shipment to Kobe, Japan, and the long delay before an examination of the goods was made by the plaintiffs.
As to whether the sale was made by sample, it appears that at the request of the plaintiff, the defendant, on May 16, 1918, furnished plaintiffs with samples of dyes and samples of malachite green crystals. It further appears that thereafter and in early July, pursuant to order, the defendant sold and delivered to plaintiffs a quantity of the malachite green crystal dyes in accordance with the sample which he had furnished the plaintiffs on May 16, 1918. It is, nevertheless, the contention of the plaintiffs that the order given by them and the sale of the 2,000 pounds of malachite green crystals on September 4, 1918, was a sale in accordance with the sample which had been furnished plaintiffs on May sixteenth. Plaintiffs’ order for said dye stuffs under date of September 4, 1918, was in writing, and therein the plaintiffs requested the delivery to them by the defendant of 2,000 pounds of malachite green crystals, f. o. b. New York, all to be shipped to plaintiffs at Kobe, Japan. Nowhere in the order is it stated that the purchase and sale was by sample. In plaintiffs’ complaint it is expressly alleged that the sale was “by a sample then [on or about the month of September, 1918] exhibited by the defendant.” The plaintiffs abandoned such claim upon the trial and made no pretense of any sample being exhibited at the time they gave the written order to the defendant. At the trial the plaintiffs claimed that the sale was by the sample which had been furnished by the defendant on the previous May sixteenth.
But even assuming that the sale was by sample, I think the evidence by a great preponderance indicates that the goods which were actually delivered by the defendant to the plaintiffs were at the time of such delivery up to the sample which had been furnished on May 16, 1918. A large amount of testimony is contained in the record, and numerous expert witnesses were sworn, both for the plaintiffs to show that the malachite green crystals which were delivered to the plaintiffs f. o. b. New York and were thereafter transported by them to Japan were of inferior quality, and on the part of the defendant that said crystals were in all respects of merchantable quality and in accordance with the contract. *404Witnesses in behalf of the plaintiffs testified that the contents of the packages shipped to Japan, from analysis and samples taken, showed that said packages contained, instead of pure dyestuffs and malachite green crystals suitable for dyeing, a substance containing foreign matter, from twenty per cent to thirty per cent or more of which was insoluble and unfit for dyeing purposes. While said goods were being delivered by the defendant to the plaintiffs, the plaintiffs, according to the testimony of the defendant, required an additional 750 pounds of the crystals to be furnished at the contract price, and after 2,029 pounds had been delivered, the plaintiffs made complaint that the quality was not as represented by the defendant, and that their customers in Japan were complaining with reference to the quality of said dyestuffs. The defendant claims to have immediately notified the plaintiffs that the dyes were of the highest quality and equal in quality to prior like dyes which the plaintiffs had purchased from the defendant, and that the defendant had retained samples of the goods shipped to Japan and would have the same tested for quality; that thereupon the defendant did have said dyestuffs tested by the United States Conditioning and Testing Company of the city of New York, and also had tests made of samples of dyes submitted by plaintiffs and alleged by plaintiffs to have been taken in Japan from the dyes already shipped, and that said tests disclosed that the dyes shipped and which had been returned by the defendant, were up to standard, but that the sample dyes submitted to the defendant by the plaintiffs as a part of the goods shipped to Japan were spurious and inferior dyestuffs and were in fact sugar crystals which had been impregnated with a small amount of the malachite green coloring so as to resemble the pure malachite green crystals, and that said samples- sent by the plaintiffs from Japan were German or Swiss products which had been substituted for defendant’s goods; and that the defendant on or about December 28, 1918, notified the plaintiffs that the dyes which he had delivered were of good quality and defendant would entertain no claim on account of the quality thereof, but would cancel the unfilled orders for the dyes purchased by the plaintiffs on receipt of check for the agreed price of the dyes already delivered, which then amounted to 2,029 pounds; and that plaintiffs in accordance with such proposition paid the defendant for the goods already shipped.
Testimony was offered on the part of the plaintiffs that the malachite green crystals were not subject to deterioration through shipment to so great a distance as Japan, and that they were not appreciably affected by heat or moisture or other climatic conditions. On the part of the defendant, the defendant himself *405was sworn as a witness and testified that heat and moisture would deteriorate the appearance of the dyestuffs; and that while the practical value thereof for dyeing purposes would not be materially lessened, still the appearance and salability would be affected and impaired. Other witnesses were sworn by the defendant to corroborate his contention that climatic conditions would affect the dyestuffs. The testimony of one witness in particular sworn in behalf of the defendant evidently carried great weight with the jury. This witness was J. Merritt Matthews, who testified that be was by profession a consulting chemist and had received the degree of Doctor of Philosophy from the University of Pennsylvania, from which he graduated in 1895; that thereafter he took two years’ graduate work, and for nine years was professor of chemistry and dyeing at the Philadelphia Textile School; that he was then for three years manager of dyeing and finishing for cotton mills in New England, and became a consulting chemist in New York city in 1910, and in 1916 and 1917 was technical director of the dye factory of Martin, Orth & Hastings at Newark, and was consulting chemist for the Grasselli Chemical Company in their dyestuffs department; that he had written several books on the subject of dyestuffs and in particular a laboratory manual of dyeing and textile chemistry and a book on the application of dyestuffs; that he was a director of the Color Trade Journal since it had been in existence, about six years; that said journal was a magazine devoted to dyestuffs, their manufacture and application. The witness Matthews testified that he was familiar with the properties of malachite green crystals, and that he had analyzed a great many samples of malachite green and had done consulting work in the technicology of malachite green, its properties and its manufacture, and had used malachite green in dyeing; and that he had observed deterioration in the malachite green crystals; that while he was employed in the dyeing department in the cotton mills in New England, for several years he used malachite green to quite an extent; and that he had observed that if exposed to-moisture, the crystals would cake together. One of the main objections raised by the plaintiffs and their witnesses to the, commodity delivered by the defendant and found in the packages in Japan was that the crystals had caked or fused together. The witness Matthews testified that the dyeing properties did not necessarily deteriorate by such caking, but the appearance of the material did deteriorate, and that in time the dyeing properties might also. The witness Matthews described at great length the manner in which the crystals deteriorated, and stated that the said crystals were sensitive at all times to moisture and heat. *406He also testified that he agreed with the analysis of Dr. Pierce who had examined the samples sent back from Kobe by the plaintiffs, and that one of the samples sent was clearly of German manufacture and was of a quality not made in this country. Matthews also testified that some of the packages of the goods sent by the plaintiffs from Japan showed plain evidence that the same had been subjected to moisture and heat. The defendant also showed that from an analysis of the samples of goods sold by the defendant and shipped by the plaintiffs to Japan, said goods were of first-class quality and substantially a standard grade of malachite green. This test was made by the United States Conditioning and Testing Company of New York city, and the evidence indicated that said testers were of high and unassailable standing in their business.
The repudiation by the plaintiffs of their contract and their belated claim, made after the armistice was signed, that the goods which they received from the defendant were of inferior quality, is quite in line" with a large number of cases of repudiation of contracts as the result of the ending of the World War. The evidence in this case shows that the market for these dyestuffs became demoralized shortly before the plaintiffs made claim that the. goods Were not up to contract. It is perfectly plain that the plaintiffs, being unable to dispose of the goods which they had purchased of the defendant at the advantageous prices which prevailed at the time of the making of the contract, and to recoup themselves from unavoidable loss of a declining market, made claim that there was some fault with the goods shipped. At the time this contract was entered into, there was concededly a great demand for malachite green crystals in the Japanese market. With the signing of the armistice that demand ceased with disastrous results to the plaintiffs. There is little doubt that, had the World War continued, the plaintiffs would have had no difficulty in disposing of any dyestuffs which they received from the defendant, and that there never would have been any claim that said dyestuffs were not up to contract.
Upon all the testimony questions of fact were presented which were resolved by the jury in favor of the defendant upon ample evidence.
In my opinion, the judgment appealed from should be affirmed, with costs.
Smith, J., concurs.
Judgment reversed and new trial ordered, with costs to appellants to abide the event.