
    Watson H. Whipple, Respondent, v. Brown Brothers Company, Appellant.
    Fourth Department,
    November 17, 1915.
    Sale — order for goods obtained by agent by false representations — implied warranty that fruit trees shall be of the variety ordered — principal and agent — misrepresentation by agent — evidence — res inter alios acta.
    Where, in an action brought by a purchaser of fruit trees against the seller for breach of warranty, the defendant introduces in evidence a certain order signed by the plaintiff which contained a clause limiting the defendant’s liability in case the trees delivered proved untrue to name, and not the varieties ordered, the plaintiff is entitled to show that his signature to the order was obtained by the false representation of the defendant’s agent to the effect that the writing contained nothing but an order for the goods which the plaintiff purchased.
    When the defendant delivered trees other than those ordered by the plaintiff there was a breach of contract, for which the defendant is liable in damages, and this without reference to any express warranty made by the defendant’s agent.
    There was an Implied warranty that the trees delivered were of the varieties ordered by the plaintiff.
    Appeal by the defendant, Brown Brothers Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orleans on the 4th day of January, 1915, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 30th day of December, 1914, denying defendant’s motion for anew trial made upon the minutes.
    
      Philetus Chamberlain [Chamberlain & Page, attorneys], for. the appellant.
    
      L. M. Sherwood [Sherwood & Cooper, attorneys], for the respondent.
   Per Curiam:

On the pleadings plaintiff had the right to prove and rely upon the oral contract he made with defendant’s agent Mull for the purchase from defendant of the peach trees in question. When defendant, to defeat plaintiff’s claim under the oral contract, introduced the written order signed by plaintiff which contained a clause limiting defendant’s liability in case the peach trees delivered proved untrue to name and not the varieties ordered, then' plaintiff was entitled to show that the written order was void and of no effect because plaintiff’s signature thereto was obtained by the false representation of defendant’s agent Mull to the effect that said written order contained nothing but an order for the goods which plaintiff had purchased. (Wilcox v. American Telephone & Telegraph Co., 176 N. Y. 115; Smith v. Ryan, 191 id. 452.)

Plaintiff’s action was not grounded in fraud but in contract, and plaintiff had the right, without pleading fraud, to overcome the effect of the written order by showing it to have been obtained by fraud. When defendant delivered trees of other varieties than those which plaintiff purchased, there was a breach of defendant’s contract for which it was liable in damages. (Sanford v. Brown Bros. Co., 134 App. Div. 652; 208 N. Y. 90.)

This without reference to any express warranty by the agent Mull. There was an implied warranty that the trees defendant delivered were of the varieties plaintiff had ordered. Defendant could avoid liability only by satisfying the jury either that Mull did not falsely represent the contents of the written and printed order which plaintiff signed, or that plaintiff did, in fact, know the contents of that order. As defendant accepted the order and undertook to fill it, we think it was bound by any representation by its agent as to the contents of the order made to secure plaintiff’s signature; hence, it is immaterial whether Mull had authority to make an express warranty or not. If it was error to admit evidence of an express warranty made by Mull on a sale to other parties, we think the error was harmless.

The judgment and order should be affirmed, with costs.

All concurred.

Judgment and order affirmed, with costs.  