
    MILBURN a. BELLONI.
    
      Supreme Court, Second District;
    
    
      General Term, Sept., 1861.
    Agent.—Warranty.—Measure of Damages.
    Where a general agent who was constantly in the employment of the defendants, who had charge of a portion of their business, and who was accustomed to make sales for them, gave a warranty of the quality of property sold by him. for the defendants,—Held, that the defendants were bound by his warranty. Even though the agent might have exceeded Ms authority in giving a warranty, the purchaser could not be prejudiced by the fact, unless information to that eifect had been given him.
    On a sale of an existing article, there is no implied warranty that the article is suitable for the purpose for which it is purchased.
    Where a warranty was given on the sale of a quantity of coal-dust, that it had no dust of soft or bituminous coal mixed with it,—Held, that the true measure of damages for the breach of the warranty was the difference between the value of the article as it was, and its value as it would have been if it had been what it was represented.
    A purchaser cannot proceed without inquiry or examination and use an article which will damage his business, relying upon a warranty which only goes to the fact of the nature or character of the article, and not to the effect of using it, and still hold the vendor responsible for the consequences of his acts.
    
    Appeal from a judgment.
    This was an action on a warranty that coal-dust sold was the dust of hard or anthracite coal, when it actually contained an admixture of soft or bituminous coal.
    The plaintiff was a manufacturer of brick in Orange county, near Hewburg. The defendants were large dealers in coal in the city of New York. The dnst of hard coal is used in the manufacture of brick. Soft coal, if so used, destroys the brick. The warranty alleged was made by one French,—in charge, at the time, of the defendants’ coal-yard,—and was, that “ the dust was that of hard coal, and contained no admixture of the dust of soft coal.” The price paid for the whole of the coal-dust was only $37.50. Plaintiff used it, and his bricks were injured to the extent of $650. The cause was tried before Hon. T. McRissock, referee, who reported in favor of the plaintiff for the whole amount, $650 damages, for which, with costs, judgment was entered.
    The defendants brought the present appeal.
    
      Beebe, Dean & Donohue, for the appellants.
    —I. The purpose for which the plaintiff wanted the coal-dust was not communicated to the defendants; and it was not the usual business of French to sell coal or coal-dust for defendants; the place where it was sold was not the place where sales were made. French was a special agent, and had no power to warrant except as to title and the general qualities of the articles sold.
    II. But the facts found by the referee do not make out a case of warranty that the article sold was fit for the specific purpose. (Keates a. Cadogan, 2 Eng. L. & E, 320; 4 M. da W., 399.) This being a purchase of an article vn esse, the rule in reference to articles to be manufactured does not apply.
    III. But if the agent had the power to warrant the quality— there being no allegations in the complaint that he warranted the dust fit for the manufacture of brick,—there could be no recovery of special damage because the plaintiff applied it to that use. The rule of damages is the difference between the value of the article as represented and as it actually was. That rule is a question of law, and excludes, in all cases,- speculative profits, or remote injuries not contemplated by the parties to the contract.
    IV.—1. To sustain this judgment, it must be held that a foreman or servant whose general duties are not to sell, but who does so, though at a place where sales are not ordinarily made, and who notifies the purchaser of his want of authority to vary the price, requesting him to wait for the principal, is necessarily vested with the power to warrant the fitness of the article, not for its general uses, but for any extraordinary purpose. 2. A mere power to sell does not imply a power to warrant. Otherwise, if the general business of the vendor requires a warranty, and the agent is the person intrusted with the general business of the vendor. (Story, Agency, §§ 59, 132, and notes; 15 East, 45; Nixon a. Hyserott, 5 Johns., 58; Gibson a. Colt, 7 Ib., 390.) The master of a ship authorized to sell, has no authority to warrant that she was a registered ship. The distinction turns upon this, whether the servant had, from the nature of his employment or the business of his master, a general authority. 3. It is not within the powers of a general agent to warrant that the article sold is fit for any but the ordinary and well-known purposes for which it is used.
    Y. The law does not undertake to fully indemnify in cases of breach of contract where there is no fraud, but awards against the party guilty of the breach such damages, and such only, as are the natural and proximate consequence of the act complained of, which may be presumed to have entered into the consideration of the parties at the time of making the contract. (2 Greenl. Ev., 210; Sedgwick, Meas. Dam., 30, 31, 78; Hargous a. Ablon, 5 Hill, 472; S. C., 3 Den., 406; 5 Ib., 306; 5 Wend., 535; 7 Hill, 62; 21 Wend., 342.)
    VI. The principle of the rule caveat enyptor applies to every sale where the goods are in sight and capable of being examined, not only in the act of purchasing, but the use of the article. The purchaser cannot say that he will close his eyes, rely upon the warranty, and if damage occurs, hold the vendor responsible. He is bound to use it with all the caution of a prudent man, and if he omits to do so, he alone is responsible for the consequences. (Sedgwick, Meas. Dam., 93, 292; 2 Stark, on Ev., 741; Hardern a. Dalton, 1 Car. & P., 181; Flower a. Adam, Taunt., 314; 11 East, 60; 7Greenl., 51; 17Pick., 284.)
    YH. It is a principle applicable alike in contract as in tort, that where the plaintiff’s negligence directly contributes to the injury, no recovery can be had.
    
      D. C. Ringland, for the respondent.
    —I. There is no dispute that defendants sold the coal-dust in question to plaintiff. The coal-dust so sold was warranted, by the defendants’ agent who sold it, to be free from soft coal. There was a breach in that warranty, in the fact of the presence of soft coal in the dust sold. The injury to the brick resulted from the soft coal.
    II. The words used by the defendants’ agent constituted a warranty. dSTo particular form of words is necessary to constitute a warranty. Any affirmation of the quality or condition of the thing sold, made for the purpose of inducing the purchase, if received and relied on, is an express warranty. (Roberts a. Morgan, 2 Cow., 438; Whitney a. Sutton, 10 Wend., 412; Cook a. Moseley, 13 Ib., 277.) Plaintiff did not examine the dust, but relied on the representation of the agent. He could not then tell the presence of soft .coal in dust, though he has since learned to distinguish it.
    III. The rule of omeat emptor does not apply where there is an express warranty; except as to such defects as are notoriously patent. In other words, the rule means that no warranty is implied. (Chit. on Cont., 390; Salisbury a. Stainer, 19 Wend., 159; Moses a. Mead, 1 Den., 378, 386.)
    IV. The defendants are bound by the warranty of French. They assert that he had not even the power to sell, much less to warrant. But their own allegations and their own testimony entirely contradict this theory. 1. The answer admits that the defendants sold the coal-dust in question. 2. French swears that he sold coal and coal-dust on other occasions. 3. French swears that Farrar was the principal salesman there; that he was there on an average two hours' a day, and that he (French) attended to the business during his absence. The authority to sell being thus established; no matter whether by express license or subsequent acquiescence, it follows—
    V. That the agent had the right to do those acts usually resorted to by vendors to induce purchasers to buy; in short, that he had a right to warrant. The difference between a general and special agent, in one point of view, is determined by the extent and permanence of his ostensible position. The familiar illustration is in Fenn a. Harrison (3 T. R., 757, 760). It amounts to this—that a person employed to do an isolated act cannot bind his employer "if he exceeds the limits of his instructions; but a person employed generally in a particular course of business, or a particular line of similar transactions, is deemed to have general authority within that sphere. (Anderson a. Coonley, 21 Wend., 279; Sandford a. Handy, 23 Ib., 260; Andrews a. Kneeland, 6 Cow., 354; Nelson a. Cowing, 6 Hill, 336.) , Again, if the principal adopt the acts of the agent at all, he adopts all his acts throughout the transaction. (Hovill a. Pack, 7 East, 164, 166.)
    VI. The amount of damages was not excessive. There are at least three branches of damage: 1. The loss of brick in loading from the kilns; 2. The loss in discharging from the vessel; 3. The inferior quality and value of the brick actually got into market.
    
      
       See to similar eifect, Prentice a. Pike, 6 Huer, 220.
    
   By the Court.—Emott, P. J.

—The person in the employ of the defendants who made the sale of coal-dust to the plaintiff, was authorized to make such a sale in the business of the defendants, and they are bound by the warranty given by him in the transaction. He was a general agent of the defendants, constantly in their employ, having charge of one of their yards, and accustomed at least occasionally to make sales from the yard. His authority and general employment were recognized by one of the defendants, who came into the yard before this transaction was completed, and allowed or directed him to make the .sale, as well as by the subsequent ratification of the act. Even if French, as an agent for selling, exceeded his positive authority or directions in giving a warranty, still, as no information to that effect was given to the plaintiff, he cannot be prejudiced by the fact. This was not a special agency for tliis particular transaction, but a general agency in the business of the defendants, to make sales of the articles in which they were dealing; and the rule of law as to such agents, in the particular now under consideration, is undisputed.

The referee finds that the defendants’ agent warranted or promised that the coal-dust which he sold to the plaintiff “ had no dust of soft or bituminous coal mixed with it.” This is the only warranty proved, and upon this alone, or for its breach, the action is brought. It is true that the evidence establishes, and the referee finds, that the plaintiff stated that he was purchasing the coal-dust for the purpose of making brick, and that soft coal-dust would not answer that purpose, and would de-

stroy or injure the brick if it should be used. But he did not ask nor receive a warranty that the coal-dust was fit for this business, nor any other warranty than that it contained no soft or bituminous coal. It was a sale of an existing article, and not a contract for its manufacture. There is in such a case no implied warranty, s.uch as will arise in some cases where an article is ordered to be made or procured for a special purpose. The distinction is well illustrated in an observation of Hr. Justice Haule, in the course of the argument in Reates a. Cadogan (2 Eng. L. &E., 320), which is often quoted. “ If a man says to another, ‘Sell me a horse fit to carry me,’ and the other sells a horse which he knows to be unfit to ride—or it might be said upon that, sells a horse which is unfit to ride, thus representing the fact to be otherwise—he may be liable for the consequences ; but if a man says, ‘ Sell me that gray horse to ride,’ and the other sells it, knowing that the former would not be able to ride it, that would not make him liable.” The defendants in the present case cannot be held upon any implied warranty that the article was suitable for the purpose for which it was purchased, or for any thing beyond the express agreement of their agent that it was the dust of anthracite coal exclusively. It will be remembered that the action is upon a warranty, and not for fraud, and depends altogether upon a breach of a positive agreement.

This is indeed, as has been already observed, the finding of the referee. ' The warranty which he determines was made and broken, was a warranty that the article was free from soft coal, and not that it was fit for use in making brick. But the rule of damages which was applied referred to a warranty of the latter description—that is, to a warranty of the fitness of the article for the purpose to which it was to be applied. If we lay out of view all which" occurred between these parties at the time of the sale in reference to the intended use of the article, as immaterial to the legal aspect of the case, it will become very obvious that the true rule of damages for a breach of the warranty which was actually given, would have been the difference between the value of the article as it was, and its value as it would have been, if it had been what it was represented to be. The defendants are not responsible for the consequences of an improper use of the article they sold, because they simply agreed that it was a certain thing, and not that it was fit for a ' certain purpose. The rule is well laid down in the case of Hargous a. Ablon (5 Hill, 472, and 3 Hen., 406). But the referee has applied a different rule. He has in fact decided that one kind of warranty was given, and proceeded to award damages for the breach of another and a different one. The injury which the plaintiff sustained in his kiln of brick was not the consequence of the fact that the dust which he bought contained bituminous coal, but of his making use of the dust when it contained that ingredient. It was his duty to have ascertained that fact before using the article. He had no right to proceed without inquiry or examination and use an article which would damage his business, relying upon a warranty which only went to the fact of the nature or character of the article, and not to the effect of using it, and still hold the defendants responsible for the consequences of his acts. The warranty was broken immediately upon the sale; the fact could then have been known, and the damages, if any, ascertained and demanded. The plaintiff cannot now hold the defendants responsible under this warranty for the remote consequences of his own subsequent action. His recovery under these pleadings and proofs should have been limited to the difference between the value of the article sold him as it was, and its value as it would have been if it had been such as it was represented.

As the referee erroneously applied a different rule of damages, the judgment entered on his report must be reversed, and a new trial ordered at the circuit, the costs to abide the event.

Brows, J., concurred.

Scrugham, J., dissented. 
      
       Present, Emott, P. J., Brown and Sorugham, JJ.
     