LG Thorne & Co Pty Ltd v Thomas Borthwick & Sons (A/asia) Ltd (1955) 56 SR (NSW) 81
Contract; contents; proving orally agreed terms; sale by sample; parol evidence rule.
Facts: Thorne bought 50 drums of Neatsfoot oil from Thomas Borthwick. The sale came about after considerable discussion and after Thorne requested and was given a sample of oil to test. To complete the agreement, Borthwick sent a document to Thorne to sign. Describing itself as a contract, the document set out quite detailed particulars about the oil but made no mention of the sample. When the oil was delivered, Thorne found that the oil in the 50 drums did not have the same qualities as the sample he had tested. Thorne claimed it was a term of the contract that it should have been the same.
Issue: Was it a term of the contract that the quality of the goods supplied would be determined by reference to the sample provided?
Decision: It was not a term of the contract that the sale was 'by sample'.
Reason: The written contract contained no reference to a sample. Furthermore, the written contract appeared, on its face, to be a complete and workable agreement, providing for all matters necessary for such a transaction. In these circumstances, the court held that it had not been expressly or impliedly agreed that the quality of the goods would be determined by reference to the sample that had been provided.