Mayer v. Dean — 54 N.Y. Super. Ct. 315

Majority

p. 315

OTTO G. MAYER, Respondent, v. WILLIAM G. DEAN, et al., Appellants.

Headnote

Sale of property by sample.

Though the rule prohibiting the reception of parol evidence which varies or modifies a written agreement, does not apply to a collateral undertaking, yet a warranty as to the present quality and condition of the property sold is connected with and applies to a contract of sale as one of its elements, and is not a collateral undertaking exempt from the application of the rule.

In this case the contract of sale was in writing, and contained no warranty of the qualify or condition of the property sold, and consequently under the rule, evidence offered by the appellants on the trial, that before the contract of sale was reduced to writing the respondent falsely and fraudulently represented that the mustard seed, the subject of the contract, was free from dirt, could not be given. "Eighmie v. Taylor, 98 N. T., 288. .

An authority to make a contract for another does not carry with it by implication authority to cancel that contract. Von Wein v. Scottish Insurance Co., 52 N. T., Super Ct., 490.

Before Sedgwick, Cli. J., Truax and Dugro, JJ.

Decided April 13, 1887.

Appeal from a judgment in favor of the plaintiff.

The action was brought to recover for mustard seed sold and delivered by the plaintiff to the defendants.

The answer admitted the sale, but it alleged that the sale was by sample, and that the seed was falsely represented to be clean, free from dirt or any impurity; that said sample appeared to be of good quality, free from dirt and impurities of any kind and fit to be manufactured for sale and use, and that no dirt was observable therein upon ordinary inspection; that said mustard seed was not as represented by the plaintiff, and not as the said sample appeared to be; that it contained dirt

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and other impurities, which fact only became apparent and known to the defendants thereafter when a portion thereof was ground, and not before, and that dirt and impurities therein could not be observed by an inspection, and only became apparent and known to the defendants when the same was ground, and that such mustard seed, by reason of the dirt and impurities therein as above stated, was not worth the price agreed to be paid therefor, and was of little or no value.

The defendants further alleged that the plaintiff knew the condition of the said mustard seed, and that the same contained dirt at the time the said representations were .made, and that said representations were fraudulently made to cheat and deceive the defendants, and to prevent an examination and test thereof, and to induce said defendants to make said purchase.

The defendants also alleged that the sale was rescinded by mutual consent and agreement of the parties hereto, and that the goods were returned to and accepted by the plaintiff.

H. D. Birdsall for appellants.

J. Hampden Dougherty for respondent.

The contract of sale between the parties was reduced to writing. By it, it appears that the defendants bought from the plaintiff “ 81 bags French Brown Mus bard Seed like sample.” One of the errors alleged by the appellants is that they were not allowed to show on the trial that at and before the time the contract of sale was reduced to writing, a person whom they claimed was the agent of the plaintiff, falsely and fraudulently represented to them that the mustard seed was free from dirt.

There was no error in the ruling of the trial judge on this point. While it is true that the rule prohibiting the reception of parol evidence which varies or modifies a

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written agreement does not apply to a collateral undertaking,- a warranty as to the present quality and condition of the property sold, is connected with and applies to a contract of sale as one of its elements, and is not a collateral undertaking.

Evidence that there was such a warranty cannot be given where the contract of sale is in writing and contains no such warranty. Eighmie v. Taylor, 98 N. Y., 288 .

The appellants also complain that they were not allowed to prove on the trial that the agent who had made the sale had also agreed to rescind the contract of sale.

There was no evidence that the agent, Berian, who was simply a general broker, had any power to rescind the contract of sale. An authority to make a contract for another does not carry with it by implication authority to cancel that contract. Von Wein v. Scottish Insurance Co., 52 N. Y., Super. Ct. 490 .

The judgment appealed from is affirmed with costs.

Sedgwick, Ch. J., and Dugro J., concurred.