
    Henry J. Washburn, Appellant, v. The Rainier Company, Respondent.
    First Department,
    January 8, 1909.
    Sale-i-failure to deliver automobile-—recovery of purchase price — place of delivery — principal and agent—when principal-bound by warranty of agent.
    Where the vendor of a second-hand automobile guaranteed it to be in good condition and agreed to deliver it at the buyer’s residence, but failed to do so owing to the fact that the machine broke down everj time an attempt was made to deliver it, the buyer may recover the purchase price.
    Evidence in an action brought to recover the purchase price of an automobile examined, and held, that a finding-by the jury that the machine was to be delivered at the buyer’s residence rather than at the seller’s place of business was warranted by a clear preponderance of evidence, and that it was error to set aside a verdict in the buyer’s favor.
    Where a principal accepts the proceeds of such sale made by an agent having ■ authority to sell, he is bound by the agent’s guaranty as to the condition of the car where the same was the inducing cause of the sale,
    Appeal by the plaintiff, Henry J. Washburn, from an order of the Supreme Court, made at the Hew York Trial Term and entered in the office of the clerk of the county of Hew Yoik on the 17th day of October, 1907, setting aside the verdict of a jury in favor of the plaintiff and directing a new trial of the action.
    
      
      William H. Sage, for the appellant.
   McLaughlin, J.:

The plaintiff, on the 29th of June, 1905, purchased from the defendant a second-hand automobile for $825. One Haines acted for the defendant in making the sale, which took place at defendant’s office.

According to the plaintiff’s contention the car was to be delivered to him by defendants Greenwich, Conn. After three unsuccessful attempts to get the car there the plaintiff ' demanded the return of his $825, which was refused, and thereupon this action was brought to recover the same. Plaintiff had a verdict for the amount claimed, which, upon motion of the defendant, was set aside as contrary to the evidence, and a new trial ordered, and he has appealed.

After a careful consideration of the record before us I am unable to see any ground for setting aside the verdict. Substantially all the. material facts are either admitted or uncontradicted. The plaintiff testified that when he went to the defendant’s office he took with him a Mr. Peelor, who had had experience in the operation of auto cars and who was a demonstrator for the Spaulding Company; that he took him for the purpose of ascertaining whether or not to purchase the machine in question ; that after he and Peelor had looked over the machine Peelor suggested that it be taken out and tried; that thereupon Haines, the defendant’s salesman, said that is not necessary; we are a responsible concern. I tell you the car is in perfect condition and it will run as good as a new car.” The plaintiff was corroborated by Peelor, who testified that Haines said when the suggestion was made that the car be taken out and tried, You know we are a reputable concern and I will guarantee that car in perfect shape, in first-class running order, and will deliver the car to you at Greenwich, at your home,” in response to which he said to the plaintiff, in the presence of Haines, Well, if that is the case, I think they are a reputable house and if the price suits you why, under that condition, I think you wouldn’t make a mistake in getting the car; ” and the plaintiff then said to Haines, If that is the case, I will rely upon the strength of that statement, and * * * I wish you to deliver that car to me in Greenwich, Connecticut, and provide your own chauffeur,” to which Haines said : “ All right, that is satisfactory.” The car was then paid for and then, or a little later, the time fixed when it should be delivered. It never was delivered at Greenwich, although three Unsuccessful attempts were made to get it there. On the first occasion the hind axle broke just as the car was leaving the garage. The second time it stopped'a short distance from the garage and would not go, and the same thing occurred on the third trial, after it ran a few miles. After the third failure the plaintiff immediately went to the defendant’s office and said to a Mr. Caswell, the only man in charge of the office, and the one who had'furnished the chauffeur, “ It is the same old story. The car has broken down again and yon will have to send another car up to bring it back. I am through. I want my money hack.” Defendant refused to return the amount paid. The car never was delivered at Greenwich, and notwithstanding the foregoing facts were not contradicted a Verdict in favor of the plaintiff was set aside and a new trial ordered.

Substantially the only conflict .in the evidence was as to what took place when the first attempt was made to get the car to Greenwich and as to in whose employ the chauffeurs were who acted on' each of the other-occasions. The vice-president of the defendant testified that he was present on the first occasion and the plaintiff asked if the car was ready, and he informed him it was.; that the plaintiff then said he wanted a chauffeur to take him- up to Greenwich, "and one was procured, and that the plaintiff then accepted the car, and after he had done so the axle broke by reason of overloading; that a discussion then took place as to who ought to pay for the axle, the plaintiff insisting it ought to be done by defendant, inasmuch as there was a flaw in it, and defendant insisting plaintiff should pay for it. The arrangement was finally made that defendant should do the work and 'plaintiff would pay what the expensé was.

There was also some evidence offered by the defendant to the effect that the car was all right at the time it was taken from the garage on the last occasion, and that the chauffeur who then started . with it was in plaintiff’s employ.' But all of this evidence was denied Iby plaintiff.

The defendant’s, representative who sold the car to the plaintiff, and to whom the purchase price was paid, was not produced, nor was the testimony of these two witnesses as to what took place at the time of the sale contradicted in any way, notwithstanding there was another person in defendant’s employ who was present at the time of the transaction.

There was no conflict in the evidence that the plaintiff bought the car and paid the purchase price ;■ that three attempts were made to get it to Greenwich, each. of which resulted in failure; that it had never been delivered by defendant at Greenwich; and that the money had never been returned to plaintiff, notwithstanding he had demanded the same. What the defendant claimed was that delivery' took place at its office, and that the agent who sold the car had no authority to guarantee its condition. Where tire car was to be delivered was, at the conclusion of the trial, a question of fact, and the finding of the jury that it was to be at Greenwich is sustained by a clear preponderance of evidence. The claim that the agent had no authority to guarantee the condition of the car cannot be sustained. He had authority to sell the car, and the defendant, having accepted the benefits of the sale, must be held responsible for the statements made by him which were the inducing cause of the sale.

The order appealed from, therefore, is reversed and the verdict reinstated, with costs to the appellant.

Patterson, P. J., Ingraham, Clarke and Houghton, JJ., concurred.

Order reversed and verdict reinstated, with costs to appellant. ¡Settle order on notice. .. .  