the 10th so as to correspond with the judgment, which was to be entered in open court the next day, the 10th. The agreement for confession of the judgment, and agreement for delivery of the oil in satisfaction of the judgment, were executed at the same time—were regarded as one transaction. It was understood that the standard was to be the sample. The sample was placed in my care. Before we left the court house the arrangements as to the number of barrels of oil, time of delivering, quality and kind of oil was made. It was agreed that the oil should be delivered at Maute's place in two weeks. The parties were brought together by Mr. Ott. Maute said he would deliver the oil as soon as he could manufacture it." Gross also gave evidence that he served a written notice on Maute that he would not receive the oil, as it was not the quality he was to get, and told Maute also that the barrels were not full.

The plaintiff, Maute, submitted a number of points to the court, which, with their answers by Sterrett, P. J., are as follows:

1. Where goods are sold on inspection there is no standard but quantity, and no warranty other than that the identical goods sold shall be delivered, and when personal property is sold by sample the same rule prevails.

Answer: "As a general proposition this is correct, but you should determine from the evidence whether the sample was introduced by Maute and falsely represented to be of his own manufacture, and whether Gross, relying not on his own judgment from inspection, but relying on the declaration and representation of Maute, agreed to adopt the sample as a test of the kind of oil they have agreed upon. If you find such to be the fact your verdict on this point should be in favor of Gross."

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2. Where roperty is sold by sample the sample, and not the name, or other description by which the property is designated, is the sole standard by which the property is to be tested.

Answer: "This proposition is correct. But where the adoption of a sample has been fraudulently procured the party who has practiced such fraud should not complain if he is denied any advantage of his wrong. The fact, or one of the

facts which you are to determine from the evidence is whether fraud or deception was or was not practiced by Maute in procuring the adoption of the sample in question."

3. The test as to the kind and quality of the oil which Maute agreed to deliver to Gross is the sample placed in the custody of J. F. Slagle, Esq., defendant's attorney, and if the jury believe from the evidence that the plaintiff delivered to the defendant, within the time fixed by the written contract, sixteen barrels of oil of the kind and quality of said sample, the jury should find in favor of the plaintiff, Jacob A. Maute. Answer: "This proposition is affirmed, provided you find that the adoption of the sample in question was not fraudulently procured by Maute."

4. It is immaterial whether the oil delivered by plaintiff to defendant was or was not lubricating, or manufactured oil, provided that it was oil of the kind agreed upon by the parties and identified by the sample, being in kind the same as the sample.

Answer: "This point is affirmed with the qualification contained in the answer to the 1st, 2d and 3d points."

5. The parol evidence offered by defendant is not sufficient to set aside the written agreement given in evidence.

Answer: "This point is refused. The issue we are trying is to determine certain facts for the information of the court. How these facts when determined by you may be applied is a matter we will not now consider. If the transaction as to the production and adoption of the sample was fraudulent on the part of Maute, as alleged by the other party, it is competent to show that it was by parol evidence."

6. That if the defendant is entitled to recover in this issue the rule of damages is the difference between the value of the oil delivered and the market value of good lubricating oil at the time fixed for delivery.

Answer: "This point is refused. Unless you find that Gross accepted the oil claimed to have been delivered he was not bound to accept any other kind of oil than that agreed upon. But if Gross accepted or received any oil from Maute the latter should have a credit on the judgment to that extent."

The defendant's point and the answer of the court were:

If the sample furnished by Maute was represented as lubricating oil of his own manufacture, and was so understood by Gross at the time he signed the agreement, and if the sample was not of his manufacture and was known by Maute not to be of his manufacture, and if the oil delivered to Gross was of the same kind as the sample but inferior in price and quality to lubricating oil of Maute's manufacture, then he was guilty of a fraud, and the verdict of the jury should be for defendant.

Answer: "If the jury find that Gross relied upon the representations of Maute, and not upon his own judgment, the point is affirmed, with the qualifications contained in the general charge."

The verdict was for the defendant in the issue, and the court directed the sheriff to proceed with the execution.

Maute took out a writ of error, and assigned for error: dismissing the rule to set aside the execution; directing the issue to try the question of fraud instead of the question whether Maute had performed his contract; directing the sheriff to proceed with the execution; admitting the evidence of Ott and Slagle, and the answers to the points.

J. BARTON, for plaintiff in error; cited Rick v. Kelly, 6 Casey, 529; Roth v. Crissy, Id. 145; Summers v. Ritchie, note to Id. 147; Weimer v. Clement, 1 Wright, 147; McFa land v. Newman, 9 Watts, 55; Carson v. Baillie, 7 Harris, 375; Lord v. Grow, 3 Wright, 88; Fraley v. Bispham, 10 Barr. 320; Wetherill v. Neilson, 8 Harris, 448; Mathews v. Hartson, Pitts. Leg. Jour., Sept. 15, 1867.

J. F. SLAGLE, for defendant in error; cited Stauffer v. Young, 3 Wright, 455.

The opinion of the court was delivered November 14, 1867, by THOMPSON, J.

The exceptions in this case arose on the trial of an issue ordered by the court below to try "whether fraud and deception had been practiced on the defendants, in substituting a different kind of oil as a sample, for that which was agreed

upon," and "whether judgment No. 452, March term, 1866, had been paid."

The testimony objected to by the plaintiff in error and plaintiff in the issue was not offered to enlarge, contradict or alter the instrument of writing of the 10th of May, 1867, between the parties, but simply to show that a material stipulation therein was founded on the misrepresentation and fraud of the plaintiff. This was proper. Fraud in a contract could never be proved if its terms were held to preclude all other evidence in regard to it. A fraudulent scrivener might, if such a rule prevailed, write a very different contract from that agreed upon by the parties; and if they affixed their signatures to it the fraud would be an accomplished fact. It is too well settled that this is not the rule to justify any reference to authorities.

The fact seems undisputed that the oil which the plaintiff agreed to deliver to the defendant in payment of the judg ment was to be oil of his own manufacture, of the kind that had been furnished by him on former occasions to the House of Refuge, and to the Lake Superior Works in this city.

When the contract was being reduced to writing the scrivener inquired how he should designate the oil. After some conversation the plaintiff proposed to procure a sample from a party who he alleged had some of his oil, and left for that purpose. He returned in a short time with a bottle containing oil, which the defendant remarked did not look like the oil he had seen of his manufacture. The plaintiff replied it was, and referring to the sample said it was the best he made, and worth $1.80 per gallon. The agreement had been written referring to the sample, while plaintiff was absent. After this conversation the parties signed the agreement. The testimony objected to showed all this and that the sample was not of manufactured, but of crude oil, worth not over sixteen. cents per gallon, instead of $1.80 as represented. Supposing that the writing closed the door against inquiry, the plaintiff, within the time stipulated, delivered the number of barrels of oil agreed upon according to the sample, and claimed a satisfaction of the judgment, which was to be paid in oil. If these facts were true, and the jury have found they were, it would be a very deficient system of jurisprudence which would for

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bid them to be proved. They went directly to establish a most unmitigated trick and fraud. No such system exists here. The testimony was very properly admitted.

There are numerous assignments of error to the charge, and they principally relate to the law of sales by sample. The court was requested in the plaintiff's second point to charge that "when property is sold by sample, the sample and not the name or other description by which the property is designated, is the sole standard by which the property is to be tested."

The answer of the learned judge to this was all that the law required, and was sufficient for the case. He said: "This proposition is correct. But when the adoption of a sample has been fraudulently procured, the party who has practiced such fraud should not complain if he is denied any advantage from his wrong. The fact, or one of the facts, which you (the jury) are to determine from the evidence is, whether fraud or deception was or was not practiced by Maute in procuring the acceptance of the sample in question."

The question was thus fairly left to the jury on the very point in issue, and was found in favor of the defendant. The jury also found that the defendant's judgment was not paid. There was no error, therefore, in permitting execution to go on the judgment.

The charge was right also in answer to the plaintiff's sixth point. The defendant was not bound to take in payment of his judgment what he never agreed to take. If a different kind of oil was delivered from that agreed to be received, and the plaintiff refused it for that reason, although he may have added others, it was not a credit or payment. Whether he accepted or refused, it was. left to the jury with proper instructions looking to either event. The court was right in directing the issue, and in all their rulings on the trial.

Judgment affirmed.