10 Misc. 140 | New York Court of Common Pleas | 1894
The plaintiffs purchased of the defendant about 4,200 yards of felt cloth, at the price of one dollar per yard, and this action is brought to recover damages of the venders for alleged misrepresentations and concealment in the sale of the goods. The complaint alleges that the defendant, by its agent thereunto lawfully authorized, represented to the plaintiffs that the defendant had manufactured, and was about to manufacture, certain kinds of beavers and cloths which were first-class articles, and fit for use in the plaintiff’s business, and which they could manufacture into coats. On the trial the complaint was treated as upon a warranty, but no such representation or warranty as alleged was proved. The plaintiffs’ testimony showed that a sample of cloth was brought to them by one Mcholls, the defendant’s agent, and that he stated in answer to the- question “How does the goods wear?” that “it wears like buckskin,” and that he had an ulster himself of those goods, and wore it two years, and that he would warrant it to wear, and that the goods would make a good ulster. The defendant moved to strike out the plaintiffs’ evidence as to the several representations, because they were not pleaded; and, although the motion was at first denied, it was- subsequently entertained and granted. This left the cause of action wholly unproved, unless we can find in the pleadings and evidence a groud of recovery for fraudulent concealment of defects, or for breach of implied warranty. The complaint sets forth that the goods, after having been made up into clothing, were discovered to be damaged, of an inferior quality, rotten, and unfit for any purpose whatsoever, and that the defendant knew the fact, and concealed it from the
The motion to strike out the evidence of representations of warranty was made also upon the ground of want of authority in the agent who sold the goods to make a special contract of warranty, and the motion was properly granted upon that ground, assuming the action to be for breach of warranty, as both sides have assumed on this appeal. Where a manufacturer intrusts an agent with the sale of his goods, he is not bound by the latter’s warranty, unless there is proof of express authority or of a usage to warrant on such sales. Wait v. Borne, 123 N. Y. 592-604, 25 N. E. 1053; Argersinger v. McNaughton, 114 N. Y. 535-538, 21 N. E. 1022. Proof of express authority or of such usage must be made by the party alleging the warranty and claiming a breach of it. Herring v. Skaggs, 62 Ala. 180. None of the exceptions urged upon the appeal present reversible error, because the evidence excluded did not relate to the material points of the case above considered. Judgment and order affirmed, with costs. All concur.