
    Decker v. Gutta-Percha & Rubber Manuf'g Co.
    (Supreme Court, General Term, First Department.
    
    November 13, 1891.)
    Warranty—Breach—Evidence—Representations op Superintendent.
    In an action for a breach of warranty of certain rubber sold to plaintiff by defendant, a corporation which manufactured it, it is error to exclude the representations made by defendant’s general manager and superintendent as to its quality, where it appears that he was in the habit of negotiating sales, and that no limitation was put upon his power in that regard, save that prices were to be fixed by the president.
    Exceptions from circuit court, New York county.
    Action by Levi Decker against the Gutta-Percha & Rubber Manufacturing Company for breach of contract. After plaintiff had rested, his complaint was dismissed, on defendant’s motion. Plaintiff excepted, and his exceptions were ordered to be heard in the first instance by the general term.
    Exceptions sustained.
    Argued before Van Brunt, P. J., and Daniels and Ingraham, JJ.
    
      Alonzo C. Farnham, (Everett P. Wheeler, of counsel,) for appellant. Pelton & Poucher, (Wm. H. Arnoux, of counsel,) for respondent.
   Van Brunt, P. J.

The plaintiff in this action had been for many years a manufacturer of billiard tables, and had been accustomed to purchase billiard table cushions of the defendant; and in April, 1881, being desirous of obtaining rubber for the purpose of constructing the cushions of billiard tables, applied to the defendant therefor, and saw the general manager and superintendent of the business of the defendant at its factory, who made certain representation in reference to the character, quality, and durability of these cushions. The superintendent referred the plaintiff to the president of the defendant to fix the price thereof. The cushions having turned out to be of an inferior quality, the plaintiff brought this action to recover damages sustained because of the breach of an alleged warranty in reference to the quality and durability of these cushions. Upon the trial he sought to prove what representations and statements had been made by thé superintendent at the time of the purchase of these cushions; and this evidence was excluded, upon the ground of want of authority upon the part of the superintendent to bind the corporation by any such representations. It is not necessary in considering this proposition to treat of the question of election as to the causes of action, no such question being raised upon this appeal. The ruling of the court is sought to be sustained by the cases of Mining Co. v. Anglo-California Bank, 104 U. S. 192, and Martin v. Webb, 110 U. S. 7, 3 Sup. Ct. Rep. 428. But an examination of those cases shows that theyhave no relevancy to the question presented by the ruling of the court below. In the case of Mining Co. v. Anglo-California Bank it was held that, as incident to the general powers of a mining company, its board of directors may borrow money for its purposes, and invest certain of its officers with authority to negotiate loans, execute notes, and sign checks drawn upon its bank account, and that the fact that the board has invested them with such authority may be shown otherwise than by the official record of its proceedings; as by evidence that, without objection by the board, checks have for a long period been signed by the president and secretary of the company. In the case of Martin v. Webb, it was held that the cashier of a bank might be shown to have been clothed with power to transact business outside of his ordinary duties by parol, or that it might be implied from the conduct and acquiescence of its directors. The principles enunciated in those cases are in no wise in conflict with the ordinary rule which has been long established, that a salesman in the conduct of a mercantile business may make declarations and representations in regard to the quality, character, and fitness of the merchandise intrusted to him for sale; and there is no difference in this respect between the agents of a corporation and the agents of an individual. In the case of Ahern v. Goodspeed, 72 N. Y. 108, the rule is expressly laid down that an agent for the sale of property, in the absence of any express limitation of his power, has authority to do any act or make any declaration in regard to the property found necessary to make a sale, and usually incidental thereto. In the case at bar it would appear that the superintendent had been in the habit of negotiating sales and talking with customers, and that all that the president did was to fix the pricfe. There were no limitations upon the ordinary powers which a salesman possesses, except, perhaps, that the price of manufacture was to be fixed by the president. It seems to us that, under these circumstances, the plaintiff had a right to show what took place between the superintendent and himself, whereby he was induced to make the purchase. Whether it would turn out when the evidence was received that whatever was said by the superintendent was more than the expression of an opinion must be determined by the character of the evidence when introduced. But the plaintiff was precluded from giving evidence of this character, and apparently was even precluded from testifying that which he repeated to the president of the corporation; and it is to be observed in the consideration of this question that the president knew that the plaintiff had been talking to the superintendent in reference to this rubber, its character and suitability for the business, and that the only subject of conversation between the president and the plaintiff was the matter of price. It would seem also that this was a distinct recognition of the right of the superintendent to make representations as to the quality of the goods which were to be delivered. We think, therefore, that error was committed in excluding the testimony as to what transpired between the plaintiff and the superintendent; the effect of such testimony, however, not being passed upon in the disposition of this appeal. The exceptions should be sustained and the motion for new trial should be granted, with costs to plaintiff to abide event. Ail concur.  