
    (76 Hun, 546.)
    MANLEY v. DECKER.
    (Supreme Court, General Term, Fifth Department.
    April 12, 1894.)
    Authority of Agent—Warranty of Goods Sold.
    In an action ■ for breach of warranty of goods sold by defendant’s agent, a conversation between defendant and the agent is not admissible to show that defendant did not authorize the agent to warrant the goods, since authority to sell includes an authority to warrant.
    Appeal from Cattaraugus county court.
    Action by Wilbur J. Manley against Albert L. Decker, as treasurer of the North Leon Cheese Factory. From a judgment entered on a verdict in favor of defendant, plaintiff appeals. Reversed.
    Argued before DWIGHT, P. J., and LEWIS, HAIGHT, and BRADLEY, JJ.
    E. A. Nash, for appellant.
    William H. Henderson, for respondent.
   BRADLEY, J.

The action was brought to recover damages for an alleged breach of warranty in the sale of a quantity of cheese to William E. Smith & Co. The plaintiff is assignee of the claim He made the purchase of the cheese for them through Harrison Franklin, who was authorized to make the sale. The evidence on the part of the plaintiff is: That, in the interview or negotiation between Franklin and the plaintiff, the latter inquired of him about the quality of the cheese, and Franklin said that the defendant had “told him to guaranty the cheese fine.” Thereupon, the plaintiff said to Franklin that, if the quality of the cheese was “fine,” he would give 7|- cents’ per pound for it. The offer was afterwards accepted, the sale made, the cheese paid for and delivered. That upon inspection the cheese was found to be, in quality, of a lower grade than fine, and consequently not worth as much as it would have been if of that specified quality. On the defense, Franklin testified that he did not say to the plaintiff that the defendant had told him to guaranty the cheese fine. He was then asked, “Did Mr. Decker tell you to do so?” The objection to this, on the ground that any matter of conversation between the witness and Decker, the defendant, was incompetent, was overruled, and exception taken. The witness answered, “No.” This evidence was not material between the parties to the action on the question of the authority of Franklin to warrant the cheese. His power to sell carried with it, as against the plaintiff, in behalf of the purchaser, the authority to warrant. It evidently was offered in corroboration of the evidence of the witness, and may have had some effect upon the question of fact presented by the conflict in the evidence of the two witnesses, and of their credibility. The evidence whether or not such conversation was had between Franklin and the defendant was not competent in behalf of the latter for any purpose; and, as it may have been prejudicial to the plaintiff upon that question, the error cannot be disregarded. No other question seems to require consideration. The judgment should be reversed, and a new trial granted; costs to abide the event All concur.  