
    BENNETT, VAN PELT & CO.’S CASE. Alfred R. Bennett et al. v. The United States.
    
      On the Proofs.
    
    
      An auctioneer employed by the government agent for the sale of captured cotton in New York sells “ cotton-pickings ” by sample at auction. The goods sold do not equal the sample ; but the fact is not discovered till after payment. The purchase-money having been turned into the Treasury, the purchaser brings his action on the implied warranty.
    
    Tbo Treasury agents appointed under the Abandoned or captured properly act (12 Stat. L., p. 820) are special agents, clothed with no general powers. The statute, moreover, directs that the sale of captured property shall he at public auction, and to the highest bidder. Therefore, neither a Treasury agent, nor an auctioneer employed by him, has authority to bind the government by a warranty, express or implied.
    
      Messrs. Oooley & Clarke and Mr. J. J. Weed for the claimants :
    I.
    The claimants, by their petition in this court, seek to recover the sum of $1,657 34, for the breach of the warrantee in the sale of certain lots of cotton, purchased by the claimants at a sale of government cotton, sold by John H. Draper, United States cotton agent and auctioneer, in the city of New York.
    The claimants, from the evidence, submit that the following faets are established:
    1st. That on the' 25th day of May, 1866, Simeon Draper, the United States agent for the sale of government cotton in the city of New York, offered for sale at auction a large quantity of cotton of various grades, among which was one hundred and sixty-nine bales of cotton classed and known as “pickings,” and that all-the cotton offered for sale on that day had been previously “ classed and sampled” by a person in the employ of said cotton agent.
    2d. That said sale was conducted on the part of the United States by John H. Draper & Co., auctioneers, who .were employed by said cotton agent to conduct said sale on behalf of the United States.
    
      3d. That at said sale there were exhibited samples of all the different lots or classes of cotton which were to be offered for sale at that time.
    4th. That at said sale the claimants were the highest and best bidders for one hundred and sixty-nine bales of cotton, known as “ pickings,” and that the claimants purchased said cotton upon the faith of the samples exhibited at said sale, and with the understanding between said claimants and the agent of the United States conducting said sale, that the samples exhibited at said sale fairly represented the quality and value of all the bales of cotton bought by the claimants at said sale.
    5th. That the cotton purchased by the claimants was not all of the quality or value of the samples thereof exhibited at said sale, but that twenty bales thereof were found, upon examination, to be damaged, rotten, and unmerchantable, and sixty-nine bales of the cotton purchased by the claimants at the same sale were much inferior in quality and value to the samples exhibited at said sales, and upon the faith of which said cotton was bought.
    6th. That the claimants, upon a resale of said cottons by them, sustained a loss thereon by reason of its inferior quality, amounting to the sum of $1,657 34.
    IL
    1. The sale of this cotton to the claimants, by the agent of the United States, being a sale by sample, there was an undertaking or agreement on the part of the United States, with the said claimants, that all the cotton purchased by the said claimants at the said sale should be similar both in quality and value to those exhibited. A sale of any articles by sample is in itself an implied warrantee that the goods or articles sold are the same generally and specifically as the sample exhibited. (1 Parsons on Contracts, p. 585; 2 Kent’s Comm., p. 481; Hilliard on Sales, p. 274, § 18»:. Story on Sales, p. 396, § 376 and 376 a; Waring v. Mason, 18 Wend., 425; Moses v. Mead, 1 Denio, 378; Beirne v. Bord, 1 Selden, 99; Andrews v. Kneeland, 6 Cowen, 354; Bradford v. Manley, 13 Mass., 139; Gardner v. Gray, 4 Camii., 144.)
    2. The stipulation clause in the advertisement of this sale, “ No reclamation will be made,” does not destroy the character of tbe sale, nor relieve it from tlie legal incidents of a sale by sample. The question in every such, case is, what the parties intended at the time of the sale; and that intention, as shown by the evidence, determines the character of the sale. (Long on Sales, p. 192; Waring v. Mason, 18 Wend., 425; Gardner v. Gray, 4 Camp., 144; JBierne v. Dord, 1 Selden, 99.)
    3. This was not a judicial sale, but a sale according to the usage and custom of merchants. It was competent for the agents of the United States to sell this cotton by sample, and to undertake, on behalf of the United States, that all the cotton sold should be equal in quality and value to the sample exhibited at the time of the sale. (12 Stat. L., p. 820, § 2.)
    4. The case of The Monte Allegro (9 Wheaton, 616) is not an authority for the proposition that there is no warrantee in sales at auction, made in the usual manner. In that case the decision turned .upon the question of fact, as to Avhether a warrantee had been made by the auctioneer, and the court find the fact to be that the auctioneer not only, had no authority from th e marshal to make the alleged warrantee, but that he had not made the warrantee.
    Here we show that the cotton had all been sampled under the direction of the agent of the United States before the sale, and that only the samples were exhibited at the time of the sale.
    5. If the court shall find either, from the terms of the sale as printed and posted at the time of the sale, that the provision therein uNo reclamation will be made” is inconsistent with the-other conditions of said sale, or the intention of the parties, as expressed at the time of said sale, they will reject said words, and give that legal effect to the contract of sale which the parties to it intended it to have. (Story on Contracts, p. 694, § 657, and authorities cited.)
    6. In cases of warrantee, in the sale of a chattel, the vendee may either return the property as soon as its deficiency is discovered, and thus put himself in condition to bring an action for the recovery of the purchase-money, or he may retain the property, and bring his action for damages resulting from the breach of the warrantee. (1 Parsons on Contracts, p. 591; 2 Kent’s Comm., p. 480; Hilliard on Sales, p. 284, §§ 32, 33.)
    7. The claimants are entitled to recover in this action the difference between the actual value of the cotton, and the value of tbe cotton as represented by tbe sample exhibited at tbe time of sale. (Hilliard on Sales, p. 291, §. 37; Oomstoclc v. Hutchinson, 10 Barb., 211;' Reggio v. Braggiotti, 7 Gush., 166; Story on Contracts p. 937, § 848; 2 Kent’s Comm., p. 480; 3 Parsons on Contracts, p. 184.)
    
      Mr. Jacob Shroder (with whom was tbe Assistant Attorney General) for tbe defendants:
    I. From tbe evidence, it is clear that tbe claimants seek to recover damages for breach of a contract to which they were not parties. Thomas & Maltby, as principals, and not as claimants’ agents, bought tbe .cotton-pickings in question. Bennett, Yan Pelt & Co. conferred no previous authority on Thomas & Maltby either to buy the cotton, or to make the alleged contract. The subsequent tranfer of the cotton is not followed by the legal consequences of a previous authority of agency. If the transfer operates as a ratification, it ratifies an act of Thomas & Maltby’s neither actually nor even avowedly done as claimants’ agents. Such ratification amounts not to a previous aiithority. (Story on Agency, § 251 a; Broom’s Maxims, 833 j Wilson v. Tumman, 6 M. & G-., [46 E. C. L.,] 236.)
    II. The claimants cannot be considered as assignees of the alleged contract of warranty between Thomas & Maltby and the defendants. Their title to the cotton-pickiugs results from a sale to them by Thomas- & Maltby subsequently to an executed contract of sale between the latter and the defendants. The claimants’ right of property is derived from a transaction distinct and independent of the alleged contract and auction sale.
    III. John H. Draper’s sale of these cotton-pickings is unauthorized, save by the terms of the Act March 12, 1863,-sec-tion 2, (12 Stat. L., 820,) which provides that “ all sales of such property (treated of in said statute) shall be at auction to the highest bidder; ” and does not further authorize the auctioneer or agent to make a warranty.
    The nature of the sale in question, and the representative character of the employers of the auctioneer, are decisive against the auctioneer’s implied authority to make the alleged contract of warranty.
    IY. Admitting the authorized agency of Thomas & Maltby, the circumstances of this sale raise no implied contract of warranty.
    The terms of the sale as announced at the auction and advertised in the catalogues conspire with the uncertain nature of packed cotton-pickings against the inference of 'that fact essential to an implied contract of warranty.
    The following announcement distinctly refuses to warrant against any concealed defect or damage: “ Whenever damage has been perceptible, a fair allowance has been made by the weigh-master. No reclamation will be made.
    And in this case the presumption of a contract of warrantee is further rebutted by the purchaser’s opportunity of seeing and examining the commodity in bulk.
    “ If the vendee has an opportunity of examining the article, the vendor is not answerable for any latent defect, without there be fraud, or an express warrantee or such a direct representation as is tantamount to it.” (2 Kent, 486.)
    V. The exhibition of a sample was merely a representation that the samples were taken from the bales mentioned in the catalogue, and nothing more. (1 Smith’s Leading Cases, part I, 308; Waring y. Mason, 18 Wend., 434; Sargous v. Stone, 1 Selden, 85.)
    YI. The contract of warranty (if any) stipulated that the bulk corresponded with the sample at the time of the sale. The measure of damage must be taken as of that time, to wit, May 26, or very soon thereafter.
    VII. The claimants do not prove that they have at all times borne true allegiance to the government of .the United States.
   Milligan, J.,

delivered the opinion of the court:

The claimants seek by this action to recover of the defendants the sum of $1,657 34, on an implied warrantee in the sale of certain lots of “ cotton-pickings,” sold in the city of New York, under the Act 12th March, 1863.

The sale was at public auction, on the 25th of May, 1866, and made both by sample and on published terms. At the same time other cottons were sold by the auctioneer, but in separate lots or parcels. The sale was under a general order to the auctioneer from the United States cotton agent to sell, without special directions or restrictions as to the manner or terms of sale, other than those contained in the printed cata-logue, which was distributed, a' sufficient time before the sale, among the people, for them to take advatage of it. These terms were publicly announced by the auctioneer before the sale began, and, as found in the record, are as follows:

“ Payments for this cotton will be received in cash currency. A deposit of $25 per bale must be made by the purchaser immediately after the sale, and the balance must be paid and the cotton taken away within three days from the time of the sale. It has been classed and sampled by G. W. Amory, who reports the cotton in about the same order as that lately sold by the government. Whenever damage has been perceptable, a fair allowance has been made by the weigh-master. No reclamation will be made.
“The cotton is stored, and can be seen at the following-places: * * * Continental stores, Brooklyn; Phenix stores, and Government stores, Staten Island. Samples can be seen at the salesrooms of John H. Draper & Co., 112 Pearl street.”

The cotton in question was sold in three lots. The first and second lots — each fifty bales — weighing together 32,600 pounds, at 1% cents a pound, amounting to $4,075 75; and the third lot — sixty-nine bales — 26,509 pounds, at 16| cents per pound, amounting to $4,440 25. All three lots were struck off and sold to Thomas & Maltby, and afterward transferred by them to the claimants, who paid the bills and took the order for the cotton.

The cottons thus sold are called in the petition and record “ cotton-pickings,” which are described by the witnesses to be “ refuse or waste cotton that becomes detached from the bales at the warehouse, or wherever it becomes scattered; they are picked up and put in bags or bales, and are called ‘pickings.’”

There is no proof that this cotton was in any other or different order than that previously sold by the government. The samples exhibited on the day of the sale were drawn from the bales in the usual way, and shown to Mr. Maltby, who bid it off; and opportunity was offered to all who desired to purchase at the sale to examine, the cotton in the bale, either before the sale or afterward, and before full payment for the amount purchased.

At the date of the sale, the three lots of cotton struck off to Thomas & Maltby were charged on the books of the auctioneer to them, and some short time thereafter, the purchaser informed the auctioneers that they had procured the claimants to take the cotton, and the bills were paid by their check.

The samples exhibited to the purchasers of this cotton turned out to be much superior to the body of the bales purchased. Complaints of this fact were made to the auctioneer, and also to Mr. Simeon Draper, the cotton agent, but no redress was made by either.. Afterward, in June, and again in October, 1866, the claimants succeeded in selling all three of the lots of cotton -purchased as aforesaid.

The first lot — fifty bales — was sold on the 4th of June, at 14 cents per pound; and the second lot, on the 12th — fifty bales— was sold in two parcels, one, thirty bales, at 16 cents, and the other, twenty bales, damaged and rotten, at '3f cents per pound ; the third lot, or remaining sixty-nine bales, was sold in October following, the first parcel of this lot, fifty-two bales, at 13J cents per pound, and the second, seventeen bales, at 10J.

The reclamation made is confined to the losses sustained on the resale of the twenty bales of damaged and rotten cotton found in the second lot; and the losses on the resale of the sixty-nine bales, or the third lot. The first are shown to have been $523 35, and on the second $1,133 99, making together the sum of $1,657 34.

On this state of facts the principal question relied on in argument by the claimants’ counsel was, that the sale was by sample, and, ás such, an implied warranty accrued to the purchasers that the cotton spld corresponded to the sample in quality and value.

We are not prepared to admit this proposition, nor do we feel called upon to discuss it, further than to say that the facts do not bring the case within the principle of law relied on by the counsel. But the real and paramount question in the case is as to the power of the agent, under whose authority the cotton was sold, to bind the United States in a covenant of warranty of the quality of the article sold, or so to conduct the sale that the law would imply a warranty of anything but of title.

The sale was^.piade under the authority of the Treasury agent, at New York, appointed under the Act 12th March, 1863. The agents appointed under this act are declared to be special agents, and clothed with no general powers. The' law imposes on them the special duty to receive and collect all abandoned or captured property, and to appropriate it to public use, on due appraisement and certificate thereof, or to forward it to a place of sale, and then to sell it at auction to the highest bidder. This act is a public law, and all parties, on well-settled principles, dealing with the agents appointed under it, and charged with the duty of carrying it out, are bound to take notice of its provisions. . •

It is quite clear the scope' of the agent’s authority under the statute was. limited to the specific grants of power therein named, and there is no grant, either express or implied, from which he could derive the authority to bind the government in any warranty whatever other than for title; and having no such power himself, he could confer none on the auctioneer.

In respect to the acts, declarations, and representations of public agents, the same rule does not prevail which governs in relation to mere private agents. As to the latter, the principals are in many cases bound, when they have not authorized the declarations and representations to be made. “But in cases of public agents,” says Judge Story, in his work on Agency, (§ 307 a,) /‘the government, or other public authority, is •not bound, unless it manifestly appears that the agent is acting within the scope of his-authority, or he is held out as having authority to do the act, or is employed in his capacity as a public agent, to make the declaration or representation for the government.”

“ Indeed,” continues the author, “ this rule seems indispensable, in order to guard the public against losses and injuries arising from the fraud or mistake, or rashness and indiscretion, of their agents. And there is no hardship in requiring from private persons, dealing with public officers, the duty of inquiry as to their real or apparent power and authority to bind the government.”

This rule is recognized by the Supreme Court in the case of Lee v. Munroe, (7 Cranch R., 366,) and is conclusive of this case.

We may add, also, that the sale appears to have been conducted in strict conformity to the published catalogue, which expressly provided against all reclamations.

On the whole case there is no ground of recovery against •the government, and the petition must be dismissed.  