Andrews v. Kneeland

Curia, per Savage, Ch. J. The sale in this case was clearly a sale by sample. There could be no other, according to the weight of the testimony. That, however, is a question of fact. It has been deliberately settled by this court, in the case of The Oneida Manuf. So. v. Lawrence, (4 Cowen, 440,) that in case of sale by sample, the vendor is responsible, that the bulk of the commodity shall be equal in quality to the sample. It is only necessary to inquire whether the judge correctly charged the jury as to the power of the agent. The difference between a general and a special agent is well understood. The principal is bound by the acts of a general agent, provided they are within the scope of his authority. But an agent constituted for a particular purpose, and under a limited and circumscribed power, cannot bind his principal by any act beyond his authority. (1 Liverm. 107-8.) Thus, in Batty v. Carswell, (2 John. 48,) the authority was limited to a single act, to be performed in a particular manner. The authority was to execute a note for $¡250, payable in six months. The agent gave a note payable in GOtlays. This court held the principal not bound. But where the agent is not limited as to the manner of doing a particular act, the principal may be bound by his acts, though exceeding the authority intended to be given to him. Thus, in the case of Fenn v. Harrison, (3 T. R. 757, 4 id. 177,) the fact at first ap [358] peared to be, that the defendants had instructed their agent to get the bill discounted; but charged him not to indorse it. He, however, did indorse it; and though Lord Ken-2/on was inclined to hold the defendants responsible ; yet the rest of the court ruled otherwise ; and granted a new trial. Upon the next trial, it appeared that the defendants desired their special agent to get the bill discounted, without restricting his power to endorse. The plaintiff had a verdict, which the court refused to set aside, on the ground that, as the defendants had authorized the agent to get the bill discounted, without restraining his authority as to the mode of doing It, they were bound by his acts. The authority of a broker to bind his principal, is not, in all cases, confined to the power which the principal intended to confer on him. The interests of the mercantile world require that he should bind his principal within the limits of the authority with which he has been apparently clothed in respect of the subject matter of the sale, (Long on Sales, 233. 15 East, 38.) In the case of The Monte Allegre, (9 Wheat. 644,) Thompson, justice, says, “ A merchant who employs a broker to sell his goods, knows, or is presumed to know, the state and condition of the article he offers for sale. And if the nature or situation of the property is such, that it cannot be conveniently examined in bulk, he has a right, and it is for the convenience of trade, that he should be permitted to select a portion, and exhibit it as a specimen, or sample of the whole; and that he should be held responsible for the truth of such representation. The broker is his special agent, for this purpose; and goes into the market clothed with authority to bind his principal. In such cases, if the article does not correspond with the sample, the injured purchaser knows where to look for redress; and the owner is justly chargeable with the loss, as he was bound to know the condition of his own property, and to send out a fair sample, if he undertook to sell in that way.” This doctrine is supported by abundant authority; and decides that the broker had power to sell [359] by sample ; and that a sale by sample is a warranty that the bulk shall correspond with the sample. In this case, it is not denied that the defendant employ-1 ed the broker to sell the cotton in question. His employment was a general one. There was no restriction as to the mode of sale, whether by sample or otherwise. He had authority to sell as cotton was sold in the due eourse of business. It appears that the most usual sales of cotton were by inspecting the bulk ; but that it was unusual to sell by sample. The broker, no doubt, however, had authority to sell by sample, if he thought proper; and, as a sale by sample is of itself a warranty that the bulk corresponds with the sample, he was authorized, by virtue of his employment, unrestricted in the mode to be adopted by him, to bind his principal by such a sale. Whether the principal and broker reside hear each other, or far distant, seems to me not material; as, in this case, there was no reference to the principal* except as to the mode of payment. The cases of Nixon v. Hyserott, (5 John. 58,) and Gibson v. Colt, (7 id. 393,) contain nothing opposed to ther principles I have advanced. Here there were no written1 instructions communicated to the party ; nor any fraud. A new trial must be granted. New trial granted.