
    Gus Luckes, Appellant, v. Archibald K. Meserole, Respondent.
    Second Department,
    April 23,1909.
    Principal and agent—personal liability of agent on unauthorized warranty — sale — acceptance — consideration for warranty.
    The selling agent of a disclosed principal is personalty liable for the breach of an unauthorized warranty.
    Where a selling agent warrants the quality of mortar after delivery hut before acceptance by the buyer, there is a consideration for the warranty. This, because the sale is not complete until acceptance.
    Appeal by the plaintiff, Gus Luches, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 20th day of March, 1908, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case on a trial at the Kings County Trial Term.
    
      William L. Stone [Albert I. Sire with him on the brief], for the appellant.
    
      J. Power Donellan, for the respondent.
   Rich, J.:

The plaintiff is a contractor, and while engaged in the erection of some buildings purchased of one William H. Meserole, for whom the defendant was acting as sales agent, a quantity of patent mortar for use upon such buildings. He testified that in answer to the inquiry of the defendant as to what kind he wanted he answered, “ any kind as long as it is good.” Defendant then informed him that he could furnish two kinds, Bock wall or Bockland Bockport Lime Company, but later told him he could not furnish the Bock wall but could furnish the other, which was just as good, twenty-five cents cheaper, to which plaintiff responded, “ all right, as long as it is good stuff and you will guarantee the stuff, I will take it,” to which respondent replied, “Sure, everything! give yon is good.” Upon inspecting the mortar upon delivery its color led the plaintiff to think that there was something wrong about it and that it might be of an unfit quality for his purpose and so informed defendant, to which he replied, “ Kever mind, that stuff is good, it comes from a very good firm. * * . * That stuff was guaranteed to us and we guarantee it to you.” Plaintiff’s foreman, testifying to this conversation, says the defendant said, “ You go ahead and use it, tlie firm is responsible for this stuff and we are responsible to you.” Relying upon this warranty the plaintiff accepted and used the mortar which proved to be worthless and had to be removed from the walls and replaced with other mortar, and the plaintiff seeks to recover the moneys expended in making the change in this action.

Plaintiff first asserted his claim against William H. Meserole, who repudiated the act of the defendant in making the warranty, and the complaint was dismissed upon the ground of a failure to establish express authority in the sales agent to make such a warranty or that such warranty was customary in the trade. lie then brought this action against the agent, alleging, first, the warranty and that it was made by defendant in his individual capacity, and that the defendant had no authority to make the warranty in behalf of his principal. The learned trial justice dismissed the complaint upon the ground that then plaintiff was dealing with the agent of a disclosed principal; that the repudiation by the principal of the unauthorized warranty of his agent was immaterial, and that the plaintiff’s cause of action was based upon a warranty made after the sale and delivery of the mortar, for which no consideration was proven, and, hence, there was no binding warranty as against the defendant. In these conclusions I think he was in error. Taylor v. Nostrand (134 N. Y. 108) is a direct authority sustaining the plaintiff’s contention of his right to maintain this action. Delivery of the mortar was not the equivalent of acceptance, and the evidence establishes' that there w-as no acceptance until after the guaranty sued upon. In James v. Libby, McNeil & Libby (103 App. Div. 256), a case very similar to the one at bar, in which the objection was made that there was no consideration for the agreement, which was made after the goods purchased had arrived at the dock in New York, it was held that the later agreement rested upon a sufficient consideration, and was enforcible.

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

Woodward, Jenks, Gaynor and Burr, JJ., concurred.

Judgment reversed and new trial granted, costs to abide the event.  