39 Misc. 533 | City of New York Municipal Court | 1902
This action was brought to recover damages for a breach of an alleged express warranty. The complaint alleges that the defendants sold certain goods to the plaintiff upon the representation and warranty by the defendants that the goods, which were known as “ Zebeline,” were “ all wool.” The defendants admit the sale of the goods, but deny that the cloth was sold upon any representation or warranty by them as to its quality. The goods were sold to the plaintiff through a traveling salesman in the employ of the defendants. Upon the trial it was proved, over the exception of the defendants, that the traveling salesman, in making the sale, stated that the goods were “ absolutely all wool.” This was denied by the agent and the defendants were not allowed to prove that their agent was not authorized to make such representations or to warrant the quality of the goods. To the exclusion of this evidence the defendants duly excepted. Ko evidence was offered by the plaintiff to show that the defendants’ agent was authorized by his principals to warrant the quality of the goods, or that it was customary for agents engaged in selling such goods to warrant as to their quality. The trial justice charged the jury “that the law is that an agent’s power to sell carried with it, as against the principal and in favor of the purchaser, the authority to warrant in regard to the material.” This portion of the charge was duly excepted to by the defendants. The question presented upon this appeal is whether an agent employed to sell goods can give a warranty as to their quality which will bind his principal, when it is not shown that it was usual for the agent to warrant the quality in the sale of goods of this character, or that the agent was authorized by his principals
This rule cannot, however, be applied in this case to sustain the verdict rendered. The goods sold were not subject to any latent defect arising out of the process of manufacture, nor were they unfit for the purpose for which they were specially designed. Here the agent of the defendants was authorized merely to sell the goods. So far as the evidence shows he was without actual authority to warrant as to the quality of the goods nor was the giving of such a warranty shown to be in accord with the usual practice of agents selling such goods. Such a warrant, given un
The judgment is reversed and a new trial ordered, with costs to the appellants to abide the event.
Conlan, J., concurs.
Judgment reversed and new trial ordered, with costs to appellants to abide event.