Tice v. Gallop

New York Supreme Court

Tice v. Gallop

5 Thomp. & Cook 51

DecidedOctober 15, 1874

StatusPublished

This text of 5 Thomp. & Cook 51 (Tice v. Gallop) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Tice v. Gallop, 5 Thomp. & Cook 51 (N.Y. Super. Ct. 1874).

Pincite

Opinion

Gilbert, J.

The authority to Burgo was to sell the horse if he got $60. Burgo sold to the plaintiff for that price, and induced the plaintiff to purchase by representing among other things that the horse was only eleven years old, whereas he was fifteen; that a lameness which he had came from a kick, whereas it was caused by a bone spavin. No question is made that those representations amounted to a warranty, or that there was a breach. The plaintiff recovered judgment, which was affirmed by the county court.

The error complained of is that a question put to the defendant when testifying on his own behalf, viz., whether he instructed Burgo to make the representations which constitute the warranty, was excluded. We perceive no error. Whether Burgo was a general or special agent, he had authority to make the representations 'by virtue of his agency to sell, unless he was forbidden so to do by his principal. Nelson v. Cowing, 6 Hill, 336; Story on Agency, § 137. The question was irrelevant. A specific authority to warrant is not necessary.

The judgment must be affirmed.

Judgment affirmed.

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Gilbert, J.

The authority to Burgo was to sell the horse if he got $60. Burgo sold to the plaintiff for that price, and induced the plaintiff to purchase by representing among other things that the horse was only eleven years old, whereas he was fifteen; that a lameness which he had came from a kick, whereas it was caused by a bone spavin. No question is made that those representations amounted to a warranty, or that there was a breach. The plaintiff recovered judgment, which was affirmed by the county court.

The error complained of is that a question put to the defendant when testifying on his own behalf, viz., whether he instructed Burgo to make the representations which constitute the warranty, was excluded. We perceive no error. Whether Burgo was a general or special agent, he had authority to make the representations 'by virtue of his agency to sell, unless he was forbidden so to do by his principal. Nelson v. Cowing, 6 Hill, 336; Story on Agency, § 137. The question was irrelevant. A specific authority to warrant is not necessary.

The judgment must be affirmed.

Judgment affirmed.

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Bluebook (online)

5 Thomp. & Cook 51, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tice-v-gallop-nysupct-1874.