Whipple v. Brown Bros.

Per Curiam: On the pleadings plaintiff had the right to prove and rely upon the oral contract he made with defendant’s agent Mull for the purchase from defendant of the peach trees in question. When defendant, to defeat plaintiff’s claim under the oral contract, introduced the written order signed by plaintiff which contained a clause limiting defendant’s liability in case the peach trees delivered proved untrue to name and not the varieties ordered, then' plaintiff was entitled to show that the written order was void and of no effect because plaintiff’s signature thereto was obtained by the false representation of defendant’s agent Mull to the effect that said written order contained nothing but an order for the goods which plaintiff had purchased. (Wilcox v. American Telephone & Telegraph Co., 176 N. Y. 115; Smith v. Ryan, 191 id. 452.) Plaintiff’s action was not grounded in fraud but in contract, and plaintiff had the right, without pleading fraud, to overcome the effect of the written order by showing it to have been obtained by fraud. When defendant delivered trees of other varieties than those which plaintiff purchased, there was a breach of defendant’s contract for which it was liable in damages. (Sanford v. Brown Bros. Co., 134 App. Div. 652; 208 N. Y. 90.) This without reference to any express warranty by the agent Mull. There was an implied warranty that the trees defendant delivered were of the varieties plaintiff had ordered. Defendant could avoid liability only by satisfying the jury either that Mull did not falsely represent the contents of the written and printed order which plaintiff signed, or that plain [533] tiff did, in fact, know the contents of that order. As defendant accepted the order and undertook to fill it, we think it was bound by any representation by its agent as to the contents of the order made to secure plaintiff’s signature; hence, it is immaterial whether Mull had authority to make an express warranty or not. If it was error to admit evidence of an express warranty made by Mull on a sale to other parties, we think the error was harmless. The judgment and order should be affirmed, with costs. All concurred. Judgment and order affirmed, with costs.