Proctor v. Spratley

Citations

• 78 Va. 254
• 1884 Va. LEXIS 4

Syllabus

<p>1. Sales—By sample—Instructions.—An instruction is erroneous which assumes that if there was a sample exhibited, the sale was a sale by sample, unless seller declined to sell by it, and also required buyer to inspect the bulk, at his own risk; and that in some cases the jury may assume, where a sample is exhibited, that the sale is a sale by sample, even though seller may expressly decline to sell by it and require buyer to inspect the bulk at his own risk.</p> <p>2. Idem—Sales by sample—Evidence.—To authorize a jury to find that a sale is a sale by sample, the evidence must show that the parties contracted solely with reference to the exhibited samples.</p> <p>3. Practice at Common Law—Instructions.—It is no error where court refuses to give an instruction asked for, but gives one as favorable.</p> <p>4. Principal—Agent—Acceptajice.—An agent may accept for his principal.</p> <p>5. Fraud—Scienter essential.—To constitute fraud, false representations are insufficient. Seller must know when he makes them that they are false. Mason v. Chappell, 15 Gratt. 572, 582.</p> <p>6. Practice at Common Law—New trials.—Where court below certifies the evidence, not the facts, the judgment will not be reversed, unless after rejecting all the exceptor’s evidence.and giving full faith to the adverse party’s, the judgment shall appear wrong. Where the case before the jury depends on the credibility of witnesses, and new trial is denied by court below, this court will not reverse the judgment.</p> <p>7. Sales by Samples—Implied warranty—Caveat emptor.—Unless parties deal with the sample with the mutual understanding that the bulk is like sample, the sale is not a sale by the sample, and otherwise there can be no warranty implied, and the maxim caveat emptor applies.</p> <p>8. Acceptance—Rejection—Bulk—Sample.—The place and time of delivery is the place and time of acceptance, or of rejection for non-conformity of bulk with sample.</p> <p>9. Sales—Case at bar is one where the evidenc