198 A.D. 108 | N.Y. App. Div. | 1921
The complaint states a cause of action for breach of warranty in the sale of an automobile truck. The plaintiffs rescinded the contract, returned the truck and seek to recover the purchase price paid. The court submitted the case to the jury as one for breach of warranty, express or implied, without objection on the part of the attorney for either party.
The plaintiffs are farmers;_ the defendant is a dealer in automobiles, automobile trucks and farm machinery, with his place of business in Oneonta, N. Y. One of the plaintiffs, William J. Gilmore, in April, 1920, went to the place of business of the defendant, where he saw Charles Hallenbeek, a salesman employed there by defendant. The plaintiff William J. Gilmore had run a Ford car a short time, but had a very limited knowledge concerning automobiles. He told Mr. Hallenbeek that he wanted to get a used truck; told him that
Upon disputed evidence the questions of fact involved in the action were submitted to the jury, which found in favor of the plaintiffs.
The defendant and Hallenbeck both testified that Hallenbeck had no authority to warrant the truck, and there was no proof of any express authority given by the defendant to •Hallenbeck to give any warranty in selling the truck; but if, in giving the warranty, he was acting within the scope of his authority, or if the sale was such as is usually accompanied by warranty, the defendant is bound by the representations of his agent. When dealing with an agent in the ordinary course of business, a purchaser need not inquire into his authority to act. Hallenbeck was defendant’s salesman at defendant’s place of business. The plaintiff William J. Gilmore had the right to understand that Hallenbeck had authority to act for the defendant and that his authority was not limited to instructions privately given, but included the apparent powers which are usually and customarily possessed by one selling automobile trucks. Hallenbeck did not inform this plaintiff that he had no authority to make any representations as to the truck and its condition. The private instructions which defendant claims to have given Hallenbeck, limiting his apparent powers, cannot injuriously affect this plaintiff, who dealt with the agent in ignorance of such instructions and in reliance upon his'apparent authority. (31 Cyc. 1326, 1327.) Hallenbeck was not a special agent appointed to act in one transaction, or selling a particular article, but was the general agent of the defendant to sell
There is one erroneous ruling which was prejudicial to the defendant. The questions of fact in the casé were very closely contested. There was a very sharp dispute as to whether the failure of the truck to do its work was due to defects m the truck, or to the unskillful manner in wMch the plamtiffs used it. The plaintiff William J. Gilmore wrote to the Secretary of State, and the Secretary of State replied in a letter inclosmg a pamphlet. The letters were not produced, but the pampMet, marked ExMbit B, was offered m evidence. The defendant objected to its reception as incompetent, irrelevant and immaterial. The objection was overruled and the defendant excepted. Defendant’s attorney stated: “ I would like to
“ Section 872, Penal Law.*
“ 18. A misdemeanor to knowingly buy, sell, receive, dispose of, conceal or knowingly have in one’s possession any motor vehicle with the manufacturer’s number, or any other identification mark, removed, defaced, covered, altered or destroyed for the purpose of concealing or misrepresenting the identity of the car.”
It appears that the defendant, in June, 1920, in an attempt to fix the car for plaintiffs, substituted a “ block ” in the place of the one in the truck when sold. No number appeared on this block and there was a dispute as to whether it had been removed and, if so, how. It is difficult to understand what the court meant by its remarks on receiving the exhibit “ B.” The exhibit could not possibly disclose whether or not there was a number on the engine and the evidence had no bearing upon any issue in the case. There is no evidence that, because there was no number on the block which had been substituted in the car, a license could not be issued for the use of the car. The exhibit simply informed the jury that the defendant was guilty of a misdemeanor if he had sold a car and if the manufacturer’s number or other identification mark had been removed, altered or destroyed for the purpose of concealing or misrepresenting the identity of the car. Although there was no proof that a number had been removed or destroyed by this defendant for the purpose of concealing the identity of the car, the jury would immediately receive this impression. It is difficult to understand that there could have been any purpose of introducing this exhibit in evidence except to prejudice the jury. The exhibit would be likely to
Having in mind the very sharp contest in the evidence, the judgment should be reversed and a new trial granted, with costs to abide the event.
All concur.
Judgment and order reversed and new trial granted, with costs to appellant to abide event.
Sic. See Penal Law, § 436-a, added by Laws of 1917, chap. 708, as amd. by Laws of 1920, chap. 119.— [Rep.