— We think there is no merit in the motion to reject the amended complaint. Each count is in assumpsit, those in the original complaint counting on a sale and delivery of merchandise, and those in the amended complaint setting up> an agreement of sale, offer of delivery, and refusal by the purchaser to accept and pay. Each count is in contract, each seeks a money recovery, and we know of no rule of pleading which forbids that they should be joined in one and the same action. — 2 Brick. Dig. 332-3, §§ 40, 43, 49, 51. And the demurrer for misjoinder was properly overruled.
Neither did the Circuit Court err in sustaining the demurrers to defendants’ plea, numbered 2. It is no answer to the complaint.
There is a well and wisely established rule of law, that if parties conduct an oral negotiation looking to the making of a contract, and, reaching an agreement, reduce their contract to writing specifying its terms, then the contract becomes merged in the writing, and all previous negotiations not carried into it are treated as abandoned. — 1 Greenl. Ev. § 275; 3 Brick. Dig. 417, § 156. That principle, however, has nothing to do with this case.
As we understand the testimony, Smith, Grainger & Cantrell, mill-men living in another State, proposed to sell and ship flour of certain named brands, at specified prices, to Penn & Co., merchants of Opelika. The brands proposed to be sold were designated as “Patent and “Straight.” The prices of the two brands were not the same. . There was testimony tending to show that a sample of each brand of flour was produced, and the mill-men offered to sell flour that should be equal to the samples, and at a specified price for each brand. No agreement of sale and purchase was then consummated. *481Soon afterwards, Penn & Co., by letter, ordered a car-load of each of the named brands of flour, at specified prices, to be paid for on delivery, and specifying nothing in reference to the quality of the flour, other than may be inferred from the brands,■“Patent” and “Straight.” When the flour reached Opelika, it was rejected by Penn & Co., on the alleged ground that it did not come up to the sample shown them when the offer of sale was made.
The foregoing appearing to be the undisputed facts in this case, we do not think the record presents any question of the merger of negotiations into a written contract. On the contrary, we hold that, as the testimony appears in this record, the true interpretation of the negotiation was, and is, an offer ' 'to sell as per sample, and that that offer was left open for acceptance by Penn & Co., should they elect to purchase. And when the latter firm gave the order to ship, it then became an agreement to purchase by sample. In such case, there is an implied warranty that the bulk shall correspond in quality with the sample.- — -Benjamin on Sales, pp. 446-7, § 969; Bish! Con. § 244; Gachet v. Warren, 72 Ala. 288. And if the flour shipped was not equal in quality with the sample which was made the basis of the negotiation, then Penn & Co. were justified in rejecting the flour. But, to justify such action on the part of Penn & Co., the inferiority of the flour as compared with the sample must have been real. It was not enough that they said, or believed it inferior. This was a question for the jury, and a pivotal question in the case. The Circuit Court erred in ruling out Montgomery’s testimony.
The principles we have declared render inappropiate several rulings of the Circuit Court. Of this class are charges 1, 2, 5, 7, 8, 9, 12, 14. Charges 7 and 14 are positively erroneous, in the light of the testimony found in this record.
The proper issues before the jury in this case were, first, did the flour shipped correspond in quality with the samples ? If it did not, defendants were entitled to a verdict. Second, if it was the equal of the samples, then plaintiffs should have a verdict for the injury they actually sustained, with interest. It was their duty to obtain the best price they could obtain per car-load on a re-sale, and if they did, their actual loss is the proper measure. They were required to act in good faith. They can not recover for the time and expense of the member of the firm who came to Opelika and made the sale.
Beversed and remanded.