Milburn v. Belloni

12 Abb. Pr. 451, 34 Barb. 607, 22 How. Pr. 18

Opinion

By the Court.

*—Emott, P. J.

—The person in the employ of the defendants who made the sale of coal-dust to the plaintiff, was authorized to make such a sale in the business of the defendants, and they are bound by the warranty given by him in the transaction. He was a general agent of the defendants, constantly in their employ, having charge of one of their yards, and accustomed at least occasionally to make sales from the yard. His authority and general employment were recognized by one of the defendants, who came into the yard before this transaction was completed, and allowed or directed him to make the .sale, as well as by the subsequent ratification of the act. Even if French, as an agent for selling, exceeded his positive authority or directions in giving a warranty, still, as no information to that effect was given to the plaintiff, he cannot be prejudiced by the fact. This was not a special agency for tliis particular transaction, but a general agency in the business of the defendants, to make sales of the articles in which they were dealing; and the rule of law as to such agents, in the particular now under consideration, is undisputed.

The referee finds that the defendants’ agent warranted or promised that the coal-dust which he sold to the plaintiff “ had no dust of soft or bituminous coal mixed with it.” This is the only warranty proved, and upon this alone, or for its breach, the action is brought. It is true that the evidence establishes, and the referee finds, that the plaintiff stated that he was purchasing the coal-dust for the purpose of making brick, and that soft coal-dust would not answer that purpose, and would de-

stroy or injure the brick if it should be used. But he did not ask nor receive a warranty that the coal-dust was fit for this business, nor any other warranty than that it contained no soft or bituminous coal. It was a sale of an existing article, and not a contract for its manufacture. There is in such a case no implied warranty, s.uch as will arise in some cases where an article is ordered to be made or procured for a special purpose. The distinction is well illustrated in an observation of Hr. Justice Haule, in the course of the argument in Reates a. Cadogan (2 Eng. L. &E., 320), which is often quoted. “ If a man says to another, ‘Sell me a horse fit to carry me,’ and the other sells a horse which he knows to be unfit to ride—or it might be said upon that, sells a horse which is unfit to ride, thus representing the fact to be otherwise—he may be liable for the consequences ; but if a man says, ‘ Sell me that gray horse to ride,’ and the other sells it, knowing that the former would not be able to ride it, that would not make him liable.” The defendants in the present case cannot be held upon any implied warranty that the article was suitable for the purpose for which it was purchased, or for any thing beyond the express agreement of their agent that it was the dust of anthracite coal exclusively. It will be remembered that the action is upon a warranty, and not for fraud, and depends altogether upon a breach of a positive agreement.

This is indeed, as has been already observed, the finding of the referee. ' The warranty which he determines was made and broken, was a warranty that the article was free from soft coal, and not that it was fit for use in making brick. But the rule of damages which was applied referred to a warranty of the latter description—that is, to a warranty of the fitness of the article for the purpose to which it was to be applied. If we lay out of view all which" occurred between these parties at the time of the sale in reference to the intended use of the article, as immaterial to the legal aspect of the case, it will become very obvious that the true rule of damages for a breach of the warranty which was actually given, would have been the difference between the value of the article as it was, and its value as it would have been, if it had been what it was represented to be. The defendants are not responsible for the consequences of an improper use of the article they sold, because they simply agreed that it was a certain thing, and not that it was fit for a ' certain purpose. The rule is well laid down in the case of Hargous a. Ablon (5 Hill, 472, and 3 Hen., 406). But the referee has applied a different rule. He has in fact decided that one kind of warranty was given, and proceeded to award damages for the breach of another and a different one. The injury which the plaintiff sustained in his kiln of brick was not the consequence of the fact that the dust which he bought contained bituminous coal, but of his making use of the dust when it contained that ingredient. It was his duty to have ascertained that fact before using the article. He had no right to proceed without inquiry or examination and use an article which would damage his business, relying upon a warranty which only went to the fact of the nature or character of the article, and not to the effect of using it, and still hold the defendants responsible for the consequences of his acts. The warranty was broken immediately upon the sale; the fact could then have been known, and the damages, if any, ascertained and demanded. The plaintiff cannot now hold the defendants responsible under this warranty for the remote consequences of his own subsequent action. His recovery under these pleadings and proofs should have been limited to the difference between the value of the article sold him as it was, and its value as it would have been if it had been such as it was represented.

As the referee erroneously applied a different rule of damages, the judgment entered on his report must be reversed, and a new trial ordered at the circuit, the costs to abide the event.

Brows, J., concurred.

Scrugham, J., dissented.

Present, Emott, P. J., Brown and Sorugham, JJ.