Tice v. Gallup

9 N.Y. Sup. Ct. 446

• Court: New York Supreme Court
• Decided: July 1, 1874
• Status: Published

Opinion

Gilbert, J.:

Action for breach of warranty, on sale of a horse by defendant through an agent named Burgo. The authority to Burgo was to sell the horse if he got sixty dollars. Burgo sold to 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 these 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 a 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.

* The question was irrelevant. A specific authority to warrant is not necessary. The judgment must be affirmed.

Judgment affirmed.

Nelson v. Cowing, 6 Hill, 336; Story on Ag., 137.