delivered the opinion of this Court:
This is an appeal from a judgment obtained by the appellee, in a suit to recover damages resulting to him from the non-correspondence of two hogsheads of tobacco with samples by which he had purchased it from the appellants. At the trial below, the appellants reserved three exceptions, presenting the following questions: 1st, whether evidence showing a custom of tobacco dealers in Baltimore, of buying and selling tobacco in bulk, by samples prepared by the State inspectors, without insuring correspondence in quality, was admissible; 2nd, whether, in a sale of tobacco by a sample drawn by the State inspector, there is, in law, a warranty that the quality in bulk corresponds with the sample; and 3rd, whether, in the sale made, the bill of parcels designating the kind of tobacco sold as “heavy Glarlcsville tobacco,” amounts to a warranty of the quality.
As the proposition presented by the 1st exception depends somewhat upon that involved in the 2nd, we shall, in our consideration of them, reverse the order in which they are stated. The determination of the question presented by the 2nd exception, upon the authority of adjudicated cases, is somewhat difficult. The doctrine that a warranty of quality is implied, in a sale by sample, is not favored by the common law, and, at most, has a drifting and uncertain character. Strictly speaking, a contract of sale by sample, is not a warranty of quality, but an agreement of the seller to deliver, and of the buyer to accept, *168goods of the same kind and quality as the sample. The identity of the goods sold in kind, condition and quality, with that of the sample is of the essence of the contract; and where the goods sold do not correspond with the sample, there would seem to be no performance of the contract. Young vs. Cole, 3 Bing. N. C., 724. Mondel vs. Steele, 8 M. & W., 858, 871. 8 Pick., 250. 13 Mass., 139. Berine vs. Dord, 1 Seld., 93. Hargous vs. Stone, Ib., 73. Waring vs. Mason, 18 Wend., 425. 1 Smith’s L. Cases, 5th A. Ed., 256, 257, 258. The rule recognized in these cases, as governing sales by sample, seems to be founded on, or to be a simple application of the principle, that to fulfil a contract of sale, the seller must deliver that which he has agreed to sell, and that if he does not, the purchaser may rescind the contract, or receive the goods and claim a deduction for their relative inferiority in value. In order that this principle may be applied, it is necessary, in making the sale, that the sample should be so used between the buyer and seller, as to express or become a part of the- contract; or, in other words, that the-sample should amount to, and take the place of, an express averment by the seller of the condition and quality of the goods sold, upon which the buyer relies in making the purchase. The mere exhibition of a sample by the seller, and examination of it by the buyer, does not amount to such an averment, unless, from all the facts or circumstances in the -case, it can be presumed that an understanding is arrived at between the parties, that the bulk is to correspond with the sample. 1 Seld., 73, 93. 18 Wend., 425, 434. The reasonable deduction from these cases is, that to effect a sale by sánrplc, so as to bind the seller for a correspondence in bulk, it must bo shown thqt the seller adopts the sample as his own description of the bulk, and that the buyer concludes the purchase upon the faith and credit of the description so given. Upon this theory, it is obvious that in making *169sales, samples may be exhibited and examined without implying, as a part of the contract of sale, any obligation that the bulk shall correspond with the sample.
In cases where both buyer and seller deal with a specific article or lot of merchandize by sample, and the buyer knows, or from the usage of the trade, or circumstances- in the base, is authorized to presume that the seller has no knowledge of the bulk, other than that afforded by an inspection of the sample, an obligation for a correspondence of the hulk, coaid not reasonably be implied as a part of the contract, for the buyer could not, in such a case, assume the exhibition or use of the sample to be a representation of quality by the seller. The fact that the seller’s ignorance of the quality of the bulk is known to tlxc buyer, is sufficient to put him on his guard, and enable lrim to protect himself by an actual inspection of the bulk, if tbat be possible, or by an express stipulation. With a knowledge of the bulk equal to that of the seller, there would •seem to be but little or no reason for permitting the buyer to hold the seller, whom he knows to be ignorant of the .actual quality and condition of the hulk, as contracting by implication for a correspondence of it* with the sample. Strictly speaking, a sale by sample would seem to imply an obligation on the part of the seller for correspondence in condition and quality, only when the buyer knows, or is justified in assuming that the seller, or some one acting for him, or for whose act, in that respect, the seller could be held responsible, has exercised a discretion in selecting the sample. In (¡ases where the sample is drawn and prepared, without the exercise of such a discretion, in a mode prescribed by law, the reason against the implication of an •obligation for a correspondence of the bulk with the sample is still stronger, for both buyer and seller are presumed to have a knowledge of the mode of drawing the *170sample, and of the fact that from the mode of drawing, it may not truly represent the condition and quality of the bulk.
The samples of the tobacco sold in this case, were drawn and prepared by a State inspector, in the mode prescribed by the statutes regulating tobacco inspections, and although the appellants are not shown to. have had other knowledge of the tobacco than that derived from the samples, the custom of dealers in buying and selling by such samples was clearly proved. Upon this statement of facts, we must presume that the appellants had no knowledge of the true quality of the tobacco at the time it was sold, and that they, as did the appellee, dealt with the bulk upon the credit of the samples alone. The samples were prepared by the State inspector, and his agency, in performing that duty, was as much in behalf of the buyer as the seller; and neither buyer nor seller has cause of complaint nor right of redress, either from the other, for any mistake as to condition or quality, if, with mutual knowledge and good faith, they buy and sell upon the credit of samples thus obtained. We think the appellants’ first prayer should have been granted, as, in our opinion, there was no implied obligation or warranty on the part of the appellants, that the bulk of the tobacco sold should correspond in quality with the samples exhibited by them in making the sale to the ajapellee.
Upon this view of the point presented by the 2nd exception, the question as to the admissibility of the evidence contained in the 1st, becomes immaterial. The testimony, if admitted, would only have proved a usage among tobacco dealers, in strict conformity with what we understand to be the law in buying and selling tobacco by samples prepared by the State inspectors. We think the evidence offered was improperly rejected, although its admission could not change the legal result.
*171'Upon the 3rd exception, it may be observed that the record contains no evidence that the tobacco sold was not of the kind designated in the bill of parcels. If the fact of a non-correspondence in kind were material to the case of the appellee, it was his duty to show it by competent proof, but lie appears by the record only to have offered evidence to show a non-correspondence in quality, as the ground of his claim for damages. The terms used in the bill of parcels, designating the subject of the sale as “heavy Clarksville tobacco,” must be understood as descriptive of kind, and not of quality, for in that sense alone have they an intelligible and certain meaning. Although the evidence shows that “trash and scrapings” were intermixed with the tobacco sold, it does not appear to have been so affected or changed in character by the intermixture as to make any other designation than that contained in the bill of parcels proper or necessary. The obligation presumed from a bill of parcels designating merchandize sold as of a particular kind, is that the seller shall deliver goods of the kind mentioned, but, ordinarily, it imposes on him no obligation as to the quality. In such a case, the hill or account of sale, stating the Mud of goods sold, does not imply a warranty of quality, nor can it have that effect without terms stating or referring to the quality, in which case the warranty is expressed, and not implied. This rule was recognized in the cases of Osgood vs. Lewis, 2 H. & G., 522, and Hyatt vs. Boyle, 5 G. & J., 118, and seems to be supported by the general current of authority in other States. 2 Pick., 214. 18 Pick., 1. 3 Rawle, 168. 10 Barr., 320. Upon these authorities, it is clear that the only warranty by the appellants, implied from the bill of parcels, was that the tobacco sold should be of the kind designated, and we think that there was error in refusing to grant the instructions sought by the appellants, by the *172prayer contained in tlieir 3rd exception. The judgment must be reversed, without a procedendo.
(Decided December 5th, 1862.)Judgment reversed,