The opinion of the court was delivered by
Brewer, J.:This was an action on a note. The defense was, that the note was given for liquors sold in this state without a license. Kaufman & Co. were wholesale liquor-merchants in Cincinnati, Ohio. The evidence shows that the goods were sold by sample, through the agent of defendants in error, and a portion of the samples left with Gill to compare when liquors arrived. Also, that Gill was to pay freight, and if liquors did not come up to standard that defendants in error were to refund freight-money and take liquors away. Did these facts change the place of the contract, which otherwise was clearly an Ohio contract? We think not. The express agreement was no more than the one the law would imply, if nothing had been said. A purchaser by sample always has the right to refuse to receive the goods if they fail to correspond with the sample. This question has already been before us, and so decided. McCarty v. Gordon, ante, p. 35. See also, Boothby v. Plaisted, 51 New Hamp. 436.
The judgment will be affirmed.
All the Justices concurring.