| N.C. | Jan 5, 1812
Saunders, in his deposition, stated that in January, (120) 1804, the plaintiff, being at his house, asked him if he had a mare to exchange for a horse. Saunders answered in the negative, but informed him that Dudley had one which he would probably exchange, as he had offered to exchange a mare for a horse belonging to Saunders. A day or two after this conversation Saunders went to New Bern, and Pritchard borrowed Dudley's mare. He saw Pritchard, who informed him that propositions had passed between him and Lane for exchanging the mare for Lane's horse, and asked Saunders whether he should trade, and upon what terms. Saunders advised him to make an exchange, saying, if Dudley should be dissatisfied he would keep Lane's horse and let Dudley have his. At this time Saunders had not informed Dudley of Lane's proposition, nor of his remark to Lane, that he, Dudley, would probably be willing to make an exchange. He was influenced entirely by the consideration that if Dudley should disapprove of the bargain he, Saunders, could keep Lane's horse and let Dudley have his. He did not advise nor consent that Pritchard should warrant the mare's soundness; he was not present at the bargain, and Pritchard never informed him that he had warranted the *94 mare's soundness, nor had he any reason to suspect that such warranty would be made or required. Afterwards on the same day he saw Dudley, and informed him that he had given such authority to Pritchard, and told him that if he were displeased he, Saunders, would keep Lane's horse and let him, Dudley, have his.
The question in the case was, Whether the warranty of Pritchard bound Dudley. The distinction between a general and special agent is founded in such obvious justice, and has been so (121) often recognized as law, that the spirit of it ought to be observed, even where the parties themselves have not stated it in terms. A general agent binds the principal by his acts; but an agent appointed for a particular purpose, and acting under a circumscribed power, cannot bind the principal by an act in which he exceeds his authority. Thus, if a person keeping livery stables and having a horse to sell empower his servant to sell, but not to warrant, still the master would be bound by the servant's warranty, because he acted within the scope of his authority, and the particular restraint upon the servant ought not to affect the public. But if the owner of a horse were to send a stranger out with him, with a power to sell, but with express direction not to warrant the horse, and the stranger disobeyed this direction, the purchaser would have a remedy against him on the warranty, but not against the owner; because he invested the servant with a circumscribed authority, beyond the scope of which he had acted. According to this rule, it is clear that Dudley would not have been liable on Pritchard's warranty, if he had directed him to sell or exchange the horse, but not to warrant him. If, on the contrary, he had been silent with respect to the warranty, and had trusted that to Pritchard's discretion, it is reasonable that he should be bound by it, since it was within the scope of an authority to sell. Does not Dudley's receiving the horse procured in exchange, and thereby assenting to the contract, place the case on the same ground as if he had given Pritchard a general power to sell in express terms, and had said nothing of a warranty? "If a servant borrow money in his master's name, the master shall not be charged with it unless it come to his use, and that by his assent. And the same law is, if a servant make a contract in his master's name, the contract shall not bind his master, unless it were by his master's commandment, or that it come to the master's use by his assent. But if a man send his (122) servant to a fair or market, to buy for him certain things, *95 though he command him not to buy them of no man in certain, and the servant doth accordingly, the master shall be charged; but if the servant in that case buy them in his own name, not speaking of his master, the master shall not be charged, unless the things bought come to his use." Doctor and Student, 236. Dudley has, then, ratified the contract as well as the warranty made by Pritchard, by receiving the horse; and although he did not know of the warranty — his own agent concealed it from him, very improperly, it is true, as between themselves — yet such concealment ought not to affect the plaintiff, who might have been induced by the warranty to part with his property. Dudley should have inquired into the terms of the exchange and ascertained fully the extent of the liability imposed on him by his agent before he consented to receive the horse. Let judgment be entered for the plaintiff.
Cited: Mfg. Co. v. Davis,