Westurn v. Page

Marshall, J. One question, only, is necessary to be decided in tbe determination -of this appeal; that is, Did the-trial court err in instructing tbe jury, in substance, as follows : ‘ If Mr. Hall, the defendant’s agent, made an agreement of warranty respecting tbe soundness of tbe horse, the defendant is bound by it, beca,use be gave Hall full authority to sell or exchange the horse. Plaintiff had a right to rely upon the authority of Hall in making whatever agreement was made as part of the agreement or sale.’ "We assume that the learned trial judge relied on Boothby v. Scales, 27 Wis. 626, where this court decided that ‘general authority to an agent to sell includes power to sell with warranty, unless the purchaser knows the private instructions to the agent, or that he is exceeding his powers,’ overlooking the fact that such case has been repeatedly overruled in subsequent cases. In Pickert v. Marston, 68 Wis. 465, the subject was discussed at length, and the general rule,laid down by standard text writers and supported by the great weight of authority, was there stated with approval, as follows: “ The general rule is as to all contracts, including sales, that the agent is to do whatever is usual to carry out the object of his agency, and it is a question for the jury to determine what is usual. If, in a sale of the goods confided to him, it is usual in the market to give a warranty, the agent may give that warranty in order to effect the sale.” The subject was again before the court in Larson v. Aultman & Taylor Co. 86 Wis. 281. In the opinion of the court by Mr. Justice Cassoday, it is there said: “ The rule is well settled that the agent employed to sell has no implied power to warrant, unless the sale is one which is usually attended with warranty.” So, it comes to this: that, in order to make out a cause of action for breach of an express warranty of an article sold by an agent, it is incumbent upon the party seeking to enforce such warranty to prove express authority from the principal to make it, or that such sales are usually attended with such warranties; [253] and tbe question of whether so usually attended or not is one for determination by the jury from the evidence. Roche v. Pennington, 90 Wis. 107; Pickert v. Marston, supra. In the light of the foregoing, the instruction under consideration. i§ clearly erroneous, which must work a reversal of the judgment appealed from. By the Court.— The judgment of the circuit court is reversed, and the cause remanded for a new trial.