dissenting. L The selling of goods by sample is not strictly a warranty of their quality, though the books sometimes so speak of it. The agreement as to quality, indicated by the sample, is a part of the contract of sale, not a sale and contract of warranty collateral therewith. A vendor sells a car-load of wheat as No. 2, which the buyer has not seen. The designation No. 2, indicating the quality of the wheat, is a description of the grain; it is not a warranty. So, if the seller presents a sample of the wheat, it is simply another method of describing it. In either case, if the wheat does not correspond with the description, the purchaser may not accept it on the contract, for it is not the wheat he bought. Of course, if he does accept it in such a manner, or under such circumstances, as will not be regarded as an admission that the wheat is of the quality described, he is liable for only the market value of the wheat.
II. Under the facts found by the court, defendants were to pay for each load of barley as it. was delivered on the track at Calmar. They refused to pay anything for the load delivered, and proposed to keep it or its price “ as a margin,” in order to enforce the contract of sale. This was a refusal by *398defendants to perform the contract, and authorized plaintiffs to decline to deliver more barley.
In my opinion, upon the facts found by the circuit court, the plaintiffs are entitled to recover j udgment for the market value of the barley delivered. Defendants are entitled to recover nothing for the failure of plaintiffs to deliver the other barley sold by tho contract. In my opinion, the judgment of the circuit court ought to be reversed.