Wait v. Borne

This action was brought by the plaintiffs for the purpose of recovering damages alleged to have been sustained by them by reason of the breach of an alleged warranty made by the defendants in the sale of certain oil to the plaintiffs. The plaintiffs had a verdict at the Circuit, which, upon motion made upon the trial judge’s minutes, was by him set aside and a new trial granted. On appeal from that order to the General Term that court set aside the order granting the new trial and ordered judgment upon the verdict for the plaintiffs. Bursuant to that order judgment was duly entered in favor of the plaintiffs and against the defendants, and from that judgment the defendants have appealed here.

The plaintiffs allege in their complaint that they were and for a long time prior to the spring of 1884 had been partners in business, engaged in the manufacture and sale of carpets at-Auburn, in the state of Sew York. That in February, 1884, the defendants’ agent came to plaintiffs’ factory in Auburn with a sample of so-called Breton wool oil, and that the agent of defendants then represented to plaintiffs that this- oil was manufactured only by them and by a newly-discovered process; that it was a much more valuable oil than the oils commonly used in manufacturing carpets, and required a much less quantity and the use of much less other materials in value and amount, and much less labor to accomplish the same results, and that it was better in other respects than the other oils used in manufacturing carpets. The agent further stated that if the plaintiffs would use the oil in their factory and in manufacturing their carpets, the defendants would guarantee the above facts and would pay all loss and damage to the plaintiffs resulting from its use.

The answer set up several defenses unnecessary to state more particularly.

Upon the trial the plaintiffs proved that Mr. Tucker came into their office and alleged that' he was the agent of the defendants, and that he was introducing wool oil which was a new process of manufacture and was sold only by the defendants ; that it was a very efficient oil and cheaper than the oil

Mr. Wait says, “ we ordered one barrel first to see if there was anything that we should find in any way that we did not like; we would not order more; we wanted to be satisfied; there could be no guaranty great enough if the oil was bad 'and we knew it; we bought one barrel to try it; in that sense.” This was all the evidence offered, on the part of the ¡fiaintiffs, as to what the contract of guaranty really was.

This barrel was ordered in February, 1884, but was not shipped from the city of Eew York, where the defendants had their place of business, until the 4th of March, 1884. On the twenty-eighth of March the plaintiffs ordered five barrels more of the oil by letter as follows :

“Eye & Wait, Gcurjpet Manufacturers,

“Auburn, E. Y., Ma/rch 28th, 1884.

66 Messrs. Borne, Scrymer & Co., 224 Front street, N. IT.:

“ Gentlemen —You may ship us via E. Y. O. & H. B. B. five barrels £ Breten ’ same as we had of you March 4.

“"Yours truly,

“ EYE & WAIT.”

“ Eye & Wait, Carpet Manufacturéis,

“Auburn, E. Y., March 6, 1884.

“ Messrs. Borne, Scrymer & Co.:

“ Gentlemen ■—■ Please ship us via E. Y. C. & TI. E. P. 5 barrels Breton Wool oil.

“ Yours truly,

“ EYTC & WAIT.”

Assuming the truth of the evidence, on the part of the plaintiffs, as to what took place at the time of the sale of the first barrel of oil in February, 1884, between themselves and Tucker, the agent of the defendants, the question arises as to the construction tobe given to the contract of guarant/therein related. Upon this subject the learned judge at the trial charged the jury that it was for them, in view of all the circumstances of the case, to say whether the guaranty if made ■was intended by Mr. Tucker and was received by the plaintiffs as bearing not only upon that barrel of oil then bought, but as bearing upon oil subsequently bought as a result of the conversation which introduced the oil to the plaintiffs; that, so far as the immediate contract between Tucker and the plaintiffs was concerned, it was finished when the barrel of oil was delivered to the plaintiffs, but he submitted to the jury as bearing upon the question of damages, whether it was intended then by Tucker, in the further carrying out of the p.ower vested in him, to introduce the oil and to induce people to buy it and use it permanently in their business, to guarantee not only the barrel then'sold, but such oil as they should subsequently buy of the defendants, and whether it was understood by the plaintiffs that that guaranty was intended to be made. If the contract was simply that Tucker agreed to guarantee this one barrel, and they said they would take- that barrel, and if they liked it, would buy more, and they intended to rely on their own judgment in buying more, the jury might properly find that the only damages .the defendants must pay

Although there was no exception in strictness to this portion of the charge of the learned judge, the counsel for the defendants did request him to charge “that there is no evidence of any express warranty from defendants to plaintiffs except as to-the use by plaintiffs of the first barrel of ‘ Breton ’ sent them by defendants.” This was declined and the defendants excepted.

Upon the coming in of the verdict the defendants made a motion for a new trial, among other grounds, upon exceptions taken during the course of the trial, and the learned judge, upon a review of his charge, held that he erred in submitting to the jury the construction to be given to the contract testified to on the part of plaintiffs, and he- said: “ On consideration I am inclined to think that the statement cannot be construed to bind the defendants to a warranty of all the oil which they might ever sell afterwards, and I can see no place where the warranty can stop short of that, if it is construed beyond the sale by Tucker. ITis object of introducing the oil was accomplished by a sale of one barrel, if it proved satisfactory, and it is not necessary to extend the contract to give force to that word. But I do not think the statement that he was introducing the oil has- any force in construing the cbntract. The subject of the contract was the oil then sold. The warranty applied to that.' With that sale it was at an end, and the parties had no longer any relations with each other. As applied to the sale then made, the warranty is plain, clear and unambiguous. It was fully satisfied by confining it to that sale, and to allow the jury to extend it to all the oil was error.”

The transaction between Mr. Tucker and the plaintiffs-resulted simply in the sale of one barrel of oil, and upon the-plaintiffs’ account of what took place at the interview that sale was accompanied with an express guaranty in regard to the oil then sold.

There was nothing in the language of Mr. Tucker, as testified to by the plaintiffs, from which any inference could1 appropriately be drawn that the guaranty which he gave in regard to the oil which he then sold was to apply to- other oil which the plaintiffs might possibly decide to buy at some future time of the defendants directly. Both the plaintiffs-admitted that they purchased the'small' quantity of one barrel for the very purpose of seeing how its: use would result, and that if it -were satisfactory then they might buy more if they chose; but they were under no obligation to order a particle-more. It was error, therefore, to leave to the jury for them to draw an inference from undisputed facts, or from statements which left no room for inference that Mr. Tucker-intended to bind the- defendants for all future sales that might be made by them to the plaintiffs.

But there is another ground upon which the evidence was; erroneously submitted to the jury. Whatever may be the law in regard to the customary power of .an agent to warrant the-article which he sells, there is no case which. I have found after considerable search in which it has ever been held that an agent to sell a particular article has the right not only to-warrant the article which he then sells, but to warrant all which may thereafter be sold by his principals to the party with whom he closes his own sale. There is no principle-upon which such a claim can be founded. The idea upon which is founded the right to warrant on the part of an agent to sell a particular article, is that he has been clothed with power to make all the common and usual contracts necessary or appropriate to- accomplish the sale of the article entrusted to him. And if in the sale of that kind or class of goods thus

This court has held that an agent authorized to sell property, in the absence of any express limitation of his powers, is authorized to make any declaration in regard to the property, or to do any act which may be found necessary to make a sale and which is usual and incidental thereto. (Ahern v. Goodspeed, 72 N. Y. 108 .) It must be usual for the agent to have power to warrant in order to carry out the object and to sell the article confided to him for sale before the law will imply such power, and it is a question for the jury to determine what is usual. (Benjamin on Sales, Bennett’s notes, § 624.)

But nowhere is there any rule laid down that I have been able to find, enlarging the scope of the agent’s power to warrant beyond the necessities of the case, or so as to include subsequent sales not made by himself, but by his principals. It would, in my opinion, be granting to an agent altogether too broad a power, and it would be placing the principal too much at the mercy of the agent who, for the purpose of accomplishing a sale of a small amount, might lead his principals into liabilities of which they knew nothing and might know nothing until a claim for their settlement was presented to them. It is not necessary to grant to agents any such extensive powers in order that they may accomplish the purpose for which they are engaged, viz.: the present sale by them of an article which belongs to the principal. Public policy, I think, forbids any such inferential powers, and if vendees seek to place liabilities of that nature upon principals, it is not too much to require that they should show actual authority of the agent to make such contracts.

The error connnitted by the learned judge in his charge to the jury would thus lead to a reversal of the judgment, but

The plaintiffs claim that their complaint contained all, the elements of a good pleading on the implied warranty, and is not vitiated as such because it ’ contains more. Perhaps a liberal construction of that pleading would bring us to the same conclusion. It is undoubtedly the truth, however, that the undertaking specially relied upon was the express one given by the defendants’ agent at the time of the sale of the first barrel of oil, for the complaint alleges that the agent represented to the plaintiffs the facts as already alluded to. The case was tried on no theory of an implied warranty. The learned judge in his charge to the jury stated in terms that whatever may havo been the defects in the oil, the defendants could not be held responsible for it unless there was a guaranty by Tucker, and unless he was authorized to give that guaranty. In another portion of his charge the learned judge said to the jury: “ You are to come to a conclusion, first whether Tucker, by the custom of the oil business, had authority to warrant these goods in the manner in which it

Again, it may be stated that a question may possibly arise ¡and be urged on the part of the defendants, based upon the correspondence between the parties when the first five barrels were ordered. It will be observed that in the written order for those barrels the plaintiffs direct the defendants to ship. them five barrels of “ Breton, the same as we had of you March 4th,” and it may be urged by the defendants that the warranty to be implied upon their sale of the oil on that occasion was that it was the same in quality and substance as the one barrel of oil which they had already furnished, and the defendants may claim that, as matter of fact, the oil was the same in ■quality and substance as that which had been previously sold by their agent, Mr. Tucker. The defendants might claim that -the same question arose in regard to the order for the second -five barrels, although it was a little differently worded, and -.they might urge that the evidence shows, or that they could

We think, therefore, that the plaintiffs did not make an answer sufficient to prevent the reversal of this judgment for the error in the charge of the judge already mentioned.

As there must be a new trial, it is proper to say a word in regard to the rule of damages in the case. The learned judge, in his charge to the jury, was right in his view of the general rule applicable to such cases. It is founded upon the basis of giving to the injured party the amount of damage directly and naturally resulting from the defendants’ breach of contract. The rule in substance laid down was that the measure of damages is the difference between the market value of the carpets as they would have been if the oil used in their manufacture had been equal to the guaranty, and their value as they in fact were after such use of the oil. This is in general correct. But in case the plaintiffs had sold their carpets after they became aware of the vicious quality of the oil, and such sales had been made under circumstances that left no liability on their part to the purchasers, then the measure of damages would be only the difference between the price actually received and the value of the carpets as they would have been if the oil had been as recommended. This of course is upon the assumption that the price paid was at least equal to their actual value. Thus if the testimony on the part of the plaintiffs showed that the actual value of the carpets was diminished twenty or thirty cents a yard, and they were yet able to sell them to customers who knew the facts, or at auction so that

We think when the carpets were sold under circumstances as above stated, the jury should have been rigidly confined to the price received as conclusive evidence of value, such price being above the sum stated by plaintiffs as their estimate of such value.

In regard to the evidence under the bill of particulars, we think the exceptions of défendant were not good. The complaint did not allege that all the carpets damaged had been sold. It stated that some of the carpets were sold and then taken back and some sold and then the prices to the customers were reduced, and that large deductions were made to other customers. It also stated that the carpets were inferior, unsaleable and not merchantable. To prove this complaint the plaintiffs were not confined to the bill of particulars. They would be strictly confined to it as to their proof, as to everything coming under any of the items designated therein, but the bill did not assume to state that all the carpets in which the oil was used had been sold, and were contained in items mentioned in such bill. Hence evidence looking to general damage upon carpets was admissible, as it would apply generally to all carpets not sold. It would also be proper for the purpose of proving the plaintiffs’ case as to the breach of the guaranty and its extent. Upon the question of damages they must be confined as to the items detailed in the bill to the damage actually sustained. Uor could they add other instances to the items which the bill contained, and which assumed to state all of such items as existed.

The bill was not a bill of items of special damage, which when proved could be added to the total amount of general damages shown by the evidence. On the contrary it assumed to give some of the details which showed the items making up (with others) the general damages sustained, and upon the

The judgment must be reversed and the order of the Circuit Court granting a new trial affirmed, costs to abide event.

All concur, except Rugeb, Oh. J., not voting.

Judgment reversed and ordered accordingly.