
    Carl A. Dahlstrom, Appellant, v. August M. Gemunder and Rudolph F. Gemunder, Composing the Copartnership of A. Gemunder & Sons, Respondents.
    First Department,
    June 11, 1909.
    Sale —'warranties — action on one no bar to action on other — agency — consideration.
    Where the purchaser of a supposed Stradivarius violin relied upon two separate warranties as'to the genuineness of the instrument, one by the owner and the other by his agents who were dealers in violins and through whom the.sale was made, he has upon a breach of the warranty, a separate cause of action against each, and a compromise with the vendor wherein it is stated that the purchaser does not release any claim against the agents and which is made for less than the amount of the damage sustained, does not prevent the maintenance of an action against the agents for the balance.'
    An allegation in the complaint in an action against the vendor that plaintiff in making the purchase relied solely on the vendor’s representation as to the genuineness of the violin is not conclusive upon him in an action against the agents, nor are they relieved from liability because they acted as the agents of the vendor in making the sale if they personally represented and warranted the instrument to be genuine.
    The purchase price served as a consideration for both warranties.
    Houghton, J., dissented, with memorandum.
    Appeal by the plaintiff, Carl A. Dahlstrom, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 17th day of April, 1909, pursuant to an order entered in said clerk’s office on the 16th day of April, 1909, dismissing the complaint, and also from the said order upon which the judgment appealed from was entered.
    
      Edward A. Alexander, for the appellant.
    
      John T. McGovern, for the respondents.
   McLaughlin, J.:

This action was brought to recover damages for the breach of a warranty. The complaint charges, in substance, that the plaintiff was desirous of purchasing a Stradivarius violin; that the genuineness of such kinds of violins can only be determined upon inspection by persons having special knowledge on Ihe subject; the plaintiff did not have such knowledge; that defendants did, and he applied to. them for the purpose of procuring ope; that they informed him they did not have one on- hand, but would endeavor to get one for him; that, subsequently they sent for the plaintifE -and represented to him that they had a genuine Stradivarius for:sale;, that the same was owned by one Hey, of- Syracuse, and for the purpose of inducing him to purchase it they personally represented and warranted/ the same to be genuine; that he, relying upon such representations and warranty, and believing the same to be true, purchased the violin from Hey through the defendants, who acted as' his agents, and paid therefor $4,000; that the defendants- received a commission from Hey on the sale; that the violin- thus purchased is not a Stradivarius, an,d its market value is not over $300, whereas if it were genuine it would be worth $5,-000 ; that-by reason of the warranty the plaintifE lias been damaged to the extent of $4,700, for' •which judgment is demanded.

The defendants deny the material allegations of the complaint, except they admit that the plaintiff asked them if they had a .Stradb varius violin for sale, and that he purchased one from Hey; and as ' an affirmative defense allege that, subsequent to the .time of the transactions set forth in the complaint and prior to the commencement of this action, the plaintiff brought ail action in the Circuit Court of the United States for the' Horthern District of Hew York against Hey to recover $4,000 damages, alleged to have been sustained by reason of a breach of his warranty that the violin referred .to in the complaint in this action was a genuine Stradivarius ; that such proceedings were had in that action that plaintifE obtained a judgment against him .for $1,750, damages, and costs, which was thereafter paid and satisfied. The pleadings in the action in the Circuit Court of the United States are annexed to and made a part, of the answer in this action.

After issue had been joined, the defendants obtained an order requiring the plaintiff' to reply to their affirmative defense, and in ■ the reply served the plaintiff admitted that he brought the action : referred to in the Circuit Court of the United States .to recover - damages for the breach of a warranty by Hey in the sale of the violin .referred to in the complaint in this action and that such action was ..settled and compromised’ for the sum of $1,750,. but at the time of the settlement it was understood and agreed that the plaintiff did not release any claim or cause of action which he had against other persons, including the cause of action set forth in the complaint in this action. After the service of the reply the defendants moved for an order overruling the same as frivolous and, under section 547 of the Code of Civil Procedure, for judgment on the pleadings. The motion was granted and the plaintiff appeals.

I am of the opinion the court erred in granting the motion. What appears from the pleadings is that the plaintiff relied upon two separate warranties in making the purchase, one by Hey, the owner of the violin, and the other by his agents, through whom the purchase was made. The consideration of both warranties was the price paid — $4,000. The plaintiff -parted with his money upon the strength of both warranties and having sustained damage by reason thereof, he had two separate causes of action—one against Hey and the other against the defendants. A recovery in either action of the full amount of damage sustained would, of course, be a complete defense to the maintenance of the other, but a compromise in one action for less than the full amount of damage sustained would not prevent the maintenance of an action against the other for the- balance.

It is true that in the action in the United States Circuit Court the plaintiff alleged that he relied in making the purchase solely upon the representation made by Hey as to the genuineness of the violin, but this allegation does not. estop him from asserting a claim for damages in this action against the defendants. It is, at-most, but an admission'of what he there stated and is not conclusive against him. The reason why it is not conclusive against him is tersely stated in the American and English Encyclopaedia of Law (Vol. 11 [2d ed.], p. 449) as follows: “ While the allegations in the pleadings in, one suit are receivable against the party in a subsequent suit betweén him and a stranger as his solemn admission of the truth of the facts recited, yet the pleading is not admitted as conclusively establishing the facts alleged therein, but is open to explanation or rebuttal, or may be shown to have been made by mistake.” (See, also, Quinby v. Carhart, 133 N. Y. 579; Empire Manufacturing Co. v. Moers, 27 App. Div. 464.)

The fact that the defendants acted as the agents of Hey, if they personally represented and warranted that the violin in question was a.genuine Stradivarius, did not relieve them from liability, notwithstanding the fact that Hey warranted the instrument to be genuine, upon which the plaintiff also relied. The defendants were dealers in violins and held themselves out as having knowledge of different makes; The plaintiff did not have the knowledge and he, therefore, had a perfect right to rely upon their representation as to the genuineness of the instrument which he desired to purchase,.and as an extra precaution he could also rely upon the representation made by the principal whom they represented. If he were deceived, he could proceed against both, and recover such damages as he had.sustained, anda payment by one of a part of the damage did not destroy his cause of - action, against the other for the balance.

The order appealed from, therefore, must be reversed, with ten dollars costs and disbursements, and the. motion denied, with ten dollars costs.

Ingraham, Clarke and Scott, JJ., concurred; Houghton, J., 'dissented.

Houghton, J.

(dissenting):

The defendants- Were not the vendors of the violin, but they are expressly alleged to have acted as agents for the vendor. If they made a- warranty, the facts alleged do not show any consideration for their agreement. To my mind the only action the plaintiff has against these defendants is one for damages for deceit. The complaint is not framed on that theory, and I think that- judgment in behalf of the defendants on the pleadings was properly granted and that the order should be affirmed. -

Order reversed, with ten.dollars costs and disbursements, and. motion denied, with ten dollars costs, and judgment vacated.  