
    George W. Ezell vs. Benjamin Franklin.
    1. Principal and Agent. Sale of personalty. Power to warrant title and quality, implied from power to sell. A general authority given by a principal to an agent to “sell and dispose of" personal property, carries with Jit, by necessary legal implication, a power, also, to warrant both the title and the quality of the property to the vendee thereof, so as to bind the owner. Thus, where an agent sold a slave under a written authority of the owner to sell and dispose of said slave, and executed to the vendee in the name of the owner a bill of sale warranting both the title and soundness of said slave, the ownet is liable to said vendee for a breach of such warranty.
    2. Same. Same. Private instructions to agent as affecting the validity 
      
      of a warranty made by him. Where an agent sells personal property under a general authority from the principal, and executes a warranty to the purchaser, any secret instructions of the principal to the agent interdicting a warranty, if unknown to the purchaser at the time of the sale, will not invalidate such warranty, but the same will bind the principal as if made by himself.
    3. Same. How far a verbal warranty by agent, will bind the principal. Any verbal statements and representations of an agent having authority to sell, and made at the time of selling personalty, and constituting an incident in, or inducement to the trade, which amount to a warranty of any quality in the thing sold, will bind the principal.
    FROM GILES.
    The plaintiff brought his action of trespass on the ease against the defendant, in the circuit court of Giles county, to recover damages for a breach of warranty of the soundness of a slave. The sale was made to the plaintiff by an agent of the defendant, under a written authority to “sell and dispose of” the slave, containing no express power to warrant the title or quality of the slave. The agent sold the slave to the plaintiff at a fair price, and executed to him a bill of sale with warranty ■ of title and soundness, in the name of his principal. The instrument conferring upon the agent the authority to sell, and the covenant of wai’ranty also, are embodied in the opinion of this court. The cause was submitted to a jury before Martin, judge, at the December term, 1853, of said circuit court. In reference to the validity of the paper relied upon as a covenant of warranty on the part of the defendant, the court charged the jury as follows: “ The bill of sale read to the jury purports to be executed by an attorney in fact of the defendant, and the plaintiff has read to the jury a power of attorney, authorizing said agent to sell the negro. As a matter of law, the power of attorney read, does give to the agent authority to sell the negro and execute a written bill of sale with warranty of title, but does not confer authority to bind the defendant by contract for the soundness of the negro, and any such contract made by the agent, does not bind his principal, unless it was afterward ratified or confirmed by the defendant; and upon this' point, if the jury shall find that the defendant received the proceeds of the sale, knowing the agent had warranted the soundness of the slave, he is bound by. such warranty.”
    There was verdict and judgment for the defendant, from which the plaintiff appealed in error to this court.
    T. M. JoNes, for the plaintiff.
    It is insisted that the judgment of the circuit court should be reversed in this case, for an error in the charge of the circuit judge upon two points.
    1. The circuit judge charged the jury, that the power of attorney executed by Franklin to Kirkpatrick, did not confer authority upon him (Kirkpatrick) to bind the principal by a warranty of the soundness of the negro.
    The power of attorney confers upon the agent a general authority “to sell and dispose of his (my) negro woman, Harriet.”
    The agent having been thus clothed with a general power to sell, and the warranty of soundness being ostensibly within the scope of that power, he had the authority to bind the principal. See Story on Contracts, 145. The question has been directly adjudicated as to the sale of real estate. See Story on Contracts, 146. 
      lagga/rt vs Stanbery, 2nd McLean’s R., 543. Peters vs. Farnsworth, 15th Vermont R., 155. 22nd Wend. R., 649. The representations, declarations, admissions, and even concealments of an agent, constituting a part of the res gestee, and being the inducement to the contract, and made at the same time, are binding upon the principal. See Story on Agency, § 135, 136-7, and cases cited. 2d Story’s Rep., 700.
    A representation made by an agent, at an authorized sale of a horse, that the horse is sound, will bind the principal. See Story on Contracts, 147, 7th Wend., 446. 11th Vermont, 477.
    If an agency be general, a warranty of soundness will bind the principal, even if contrary to instructions. See Story on Contracts, 147. Alexander vs. Gibson, 2nd Camp. R., 555. Oornfoot vs. Fowlcs, 6 Meeson and Welsby, 358. 15 East’s R., 43. 3 Term. R., 760.
    2, Whenever an authority is conferred upon an agent, whether express or implied, special or general, it is always construed to include all the necessary or usual modes and means of so executing it, as to accomplish the objects of the agency. Story on Contracts, p. 148, § 137. Story on Agency, § 58. Rogers vs. Kneeland, 10 Wend., 218. 6 Sergt. & R., 146.
    3. It has been decided in North Carolina, that a general agent, created by parol, has the authority to bind the principal by a warranty of soundness. See 3 Iredell, 349 — case of James ’Williamson dé Go. vs. Wyatt Oanaday.
    
    BeowN and Walxee, for the defendant:
    The plaintiff.in his declaration does not allege that the defendant or his agent knew the slave to be unsound, and practised a fraud upon him, but he alleges that the slave was warranted sound, and that the warranty was broken, inasmuch as the slave was unsound. By this, the plaintiff elects to ' affirm the contract, and not to disaffirm it, and before he can recover upon this ground, he must show, not only that the negro was unsound, but that the defendant warranted her sound.
    In the sale of chattels, in the possession of the vendor, the law implies a warranty of title from the act or fact of sale. Charlton vs. Lay, 5 Humph., 496, 498; but it does not imply a warranty of soundness from the mere fact of sale. The defendant did not sell the slave himself, to the plaintiff. The sale was made by an agent, William H. Kirkpatrick, and the authority under which he acted, merely authorized him to sell and dispose of the slave, and did not give him any power to warrant the slave sound, so as to bind his principal for a breach of such a warranty. To warrant the slave sound is not a necessary incident to the power to sell; nor is it a business in which the power is conferred by a known custom thereby, so to act. Lijpseomb vs. Kittrell, 11 Humph., 256, 260.
    The proof shows that the plaintiff, himself, sold the slave for $700, and did not warrant her sound. This pi’oves conclusively, that the warranty of soundness is not a necessary incident to the power to sell. The plaintiff cannot go upon the ground of fraud and for a breach of warranty in the same action; he must elect upon which ground he will proceed, and he has elected in this case to go upon the ground of a breach of warranty, and it is contended he cannot recover upon this ground, because Kirkpatrick, the agent, had no authority to bind the defendant upon a warranty of soundness.
    A warranty does not extend to defects which are visible, or of which the vendee was informed. 2 Humph., 305, 308.
    The defendant never ratified the contract of Kirkpatrick, warranting said slave sound, as there is no proof that he ever knew that Kirkpatrick had warranted the slave sound, and he -could not ratify a thing he knew not of.
   Caeuthbks, J.,

delivered the opinion of the court.

This is an action upon a breach of warranty of soundness in a slave, made in writing by the agent of defendant.

The agency is created in these words: “I, Benj. Eranklin, of the county of Giles, Tennessee, do hereby authorize and empower ¥m, IT. Kirkpatrick to sell and dispose of my negro woman, Harriet. This the 21st April, 1851. BeNjamiN FbanKlin.”

The bill of sale was made in Mississippi, and is as follows:

“Received, May 6th, 1851, of G. W. Ezell, $700 in fall, for a negro woman, named Harriet, which girl I warrant sound and healthy, a slave for life, and title good, and not over 21 or 22 years old.
Benjamin Ebanklin.
By William H. Kiekpateiok.”

Mueh proof was introduced on the question of soundness, and the case went to the jury, under a of the court, to which two exceptions are taken.

1. His Honor stated the law to be, that under the agency, there was no power to make a warranty that the slave was sound, so as to bind the principal.

2. That this contract was void under the Constitution and laws of Mississippi, and could not, for that reason, be the foundation of a suit.

Both positions are manifestly erroneous. If an agent be empowered to sell personal property, the law implies a power to bind his principal in a warranty of soundness. A general authority to sell personal property, or even one particular article, carnes with it the power to warrant, both the title and quality of the thing sold, so as to bind the owner, for whom the sale is thus made.

This is an incident to the power conferred, if unrestricted.

Even private instructions in . conflict with this general authority, if unknown to the purchaser, would not protect the principal, because, as the agent acted within the general scope of the authority to sell, the public cannot be supposed, or perhaps required, to be acquainted with secret limitations of his power, and private instructions. 2 Kent, 621, and note A, citing 3 Term R., 757. 15 East, 45. 3 Ired’l, 349.

' Verbal statements and representations of an agent, amounting to a warranty of soundness, or any other quality, made in connection with, and at the time of the transactions of the agency, will bind the principal. But not so, if it be made at another time, for it would not then be a part of the res gestee, and as such constitute an incident in, or inducement to the sale. Story on Agency, 137-9.

These positions are sustained by an unbroken current of authorities, which need not here be accumulated.

The case of Lipscomb vs. Kitrell, 11 Humph. R., 260, cited and relied upon by the counsel for Eranklin, does not conflict with this doctrine, but rather confirms, by an express acknowledgment of it.

The court there, in effect, admit the general princi-pie, “that an agency to sell confers on the agent the incidental power to warrant the thing sold” — but say, that it had no application to the case then under consideration, as it surely had not.

It is certainly true, that under a special or limited agency, the principal cannot be bound by an act not embraced by the authority given, or by the exercise of a power beyond such authority, or of á different character, If the agency be to sell one article, or one species of property, it will not extend to any other.

2. The second error assigned upon the charge in relation to the invalidity of the contract by the laws of Mississippi, was' doubtless committed by his Honor, because, of the absence of the authority showing that the Constitution of that State, on that subject, was changed, and the act made in pursuance thereof, repealed, previous to the date of the contract upon which this suit was brought.

■ Eor these errors in the charge, without any reference to the merits upon the facts, the judgment will be reversed, and a new trial granted.

Judgment reversed and cause remanded.  