Blood v. French

75 Mass. 197

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1857
• Status: Published

Opinion

Bigelow, J.

1. The parties to the suit were competent witnesses. The exception in St. 1856, c. 188, is intended to apply only to cases where the suit is brought by or against an executor or administrator, on a contract or cause of action made or existing before the death of the party represented on the record, and not to a case like the present, where the action is brought on a contract made with an administrator personally concerning the sale of the effects in his hands.

2. The instructions as to the right and authority of the auctioneer to warrant the article sold were correct. We doubt whether, in an ordinary sale of goods by auction, an auctioneer virtute officii has any right or authority to warrant goods sold by him, in the absence of any express authority from his principal to do so, and without proof of some known and established usage of trade, from which an authority can be implied. The Monte Allegre, 9 Wheat. 647. Upton v. Suffolk County Mills, 11 Cush. 589. However this may be, we are clear that he has no such authority in a case like this, where be acts as agent for an administrator in selling the goods of his intestate. The nature of the sale and the representative capacity in which the vendor acts in employing the auctioneer, preclude any implied right or authority in the latter to make a warranty, binding on the administrator personally, of the soundness of the articles sold. Exceptions overruled.