
    Levi Decker, Pl’ff, v. The Gutta Percha & Rubber Mfg. Co., Def't.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed November 13, 1891.)
    
    Sale—Wareahtt—Evidence.
    Plaintiff bought billiard table cushions of defendant for use in his business, the negotiation being made with defendant’s superintendent, who was accustomed to negotiate sales and talk with customers, plaintiff being referred to the president only as to the price. In an action upon an alleged breach of warranty, Held, that plaintiff had a right to show what took place between the superintendent and himself whereby he was induced to make the purchase, and that it was error to exclude such proof.
    Motion for new trial by the plaintiff upon exceptions taken at the trial, the complaint having been dismissed.
    
      E. P. Wheeler, for pl’ff; W. H. Arnoux, for def’t.
   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 defendants therefor, and saw the general manager and superintendent of the business of the defendants at their factory, who made certain representations in reference to the character, quality and durability of these cushions. The superintendent referred the plaintiff to the president of the defendants 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 the 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-Californian Bank, 104 U. S., 192, and Martin v. Webb, 110 id., 7. But an examination of those cases shows that they have no relevancy to the question presented by the ruling of the court below. In the case of Mining Co. v. Californian 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 paroi, 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 entrusted 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 price. 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 a new trial should be granted, with costs to plaintiff to abide event.

Daniels and Ingraham, JJ.,. concur.  