Oetjen v. Whitehead Metal Products Co.

126 Misc. 369, 213 N.Y.S. 600, 1926 N.Y. Misc. LEXIS 575

Opinion

Per Curiam.

We are of the opinion that the evidence amply authorized the finding made by the learned trial justice that the plaintiff relied upon the “ skill or judgment ” of the defendant seller. (Pers. Prop. Law, § 96, subd. 1, as added by Laws of 1911, chap. 571.) It was contended by the defendant that to avail of the implication referred to in subdivision 1 it was incumbent upon the plaintiff to show that the salesman who made the sale had been authorized by the defendant impliedly to warrant. The contention is based upon , what seems to us to be a misconception of the legislative purpose. The statute itself fastens the implication upon the transaction whenever the circumstances are such as to show, as matter of fact, that the buyer had reason to rely upon the judgment or skill of the seller, and that in fact he did so rely. As to the authority of an agent to bind his principal by implied warranties, see Williston on Sales (vol. 2 [2d ed.], § 445a); 2 Corpus Juris, 601; Mechem on Agency (vol. 1 [2d ed.], 883, and cases cited). As any express warranty found by the trial court to have been made was such as did “ not negative ” the implied warranty referred to (Pers. Prop. Law, § 96, subd. 6, as .added by Laws of 1911, chap. 571), it is unnecessary to decide whether an express warranty was made, and we make no decision upon that subject. The action was, however, not brought for breach, but upon common-law rescission, and it was error to include in the damage award the cost to plaintiff of testing the metal. (Norton v. Dreyfuss, 106 N. Y. 90.)

Judgment modified by reducing it to $549.45, with interest from May 17, 1924, and costs, and as so modified affirmed, without costs of appeal to either party.

All concur; present, Guy, Bijur and Mullan, JJ.