
    Wilbur J. Manley, App’lt, v. Albert L. Decker, as Treasurer, etc., Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed April, 1894.)
    
    1. Principal and agent—Warranty—An agent’s power.
    An agent’s power to sell carries with it, as against the principle in favor of the purchaser, the authority to warrant.
    2. Evidence—Principal and agent—Instructions.
    In an action against the principal, conversations Between him and agent, are incompetent in his favor.
    Appeal from judgment of Cattaraugus county court entered upon a verdict in favor of the defendant.
    
      E. E Nash, for app’lt; William 11. Henderson, for resp’t.
   Bradley, J.

The action was brought to recover damages for and 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 defend-had “told him to guarantee the cheese fine.” Thereupon the plaintiff said to Franklin that if the quality of the cheese was “fine” he would give seven and a half 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 guarantee the cheese fine. He was 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 purchase 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.

ISTo other question seems to require consideration.

The judgment should be reversed and a new trial granted, costs to abide the event. All concur.  