49 wise." The custom of giving an express warranty upon the sale is usually a question of fact for the jury.50 The revocation of the Minn. 167; Melby v. Osborne, 33 Minn. 492; Case, etc., Co. v. McKinnon, 82 Minn. 75; Nat. Citizens Bank v. Erty, 83 Minn. 12, 53 L. R. A. 174; Palmer v. Hatch, 46 Mo. 585; Kircher v. Conrad, 9 Mont. 191; Morris v. Bowen, 52 N. H. 416; Smilie v. Hobbs, 64 N. H. 75; Cooley v. Perrine, 41, 42 N. J. L. (12 Vroom) 322; Tice v. Gallup, 2 Hun (N. Y.), 446; Nelson v. Cowing, 6 Hill (N. Y.), 336; Scott v. McGrath, 7 Barb. (N. Y.) 53; Sandford v. Handy, 23 Wend. (N. Y) 260; Milburn v. Belloni, 34 Barb. (N. Y.) 607; Smith v. Tracy, 36 N. Y. 79; Ahern v. Goodspeed, 72 N. Y. 108; Bierman v. Mills Co., 151 N. Y. 482, 37 L. R. A. 799; Williamson v. Canaday, 25 N. C. (3 Ired.) 349; Davis v. Burnett, 49 N. C. (4 Johns. L.) 71; Hunter v. Jameson, 28 N. C. (6 Ired.) 252; Canham v. Plano Mfg. Co., 3 N. Dak. 229; Fletcher v. Nelson, 6 N. Dak. 94; Ezell v. Franklin, 34 Tenn. (2 Sneed) 236; McAlpin v. Cassidy, 17 Tex. 449; Fay v. Richmond, 43 Vt. 25; Deming v. Chase, 48 Vt. 382; Reese v. Bates, 94 Va. 321; Boothby v. Scales, 27 Wis. 626; Pickert v. Marston, 68 Wis. 465; Larson v. Aultman, 86 Wis. 281; Westurn v. Page, 94 Wis. 251; Dingle v. Hare, 7 C. B. (N. S.) 145; Baldry v. Bates, 52 L. T. (N. S.) 620; Alexander v. Gibson, 2 Camp. 555. "The general rule is, as to all contracts including sales, that the agent is authorized to do whatever is usual to carry out the object of his agency, and it is a question for the jury to determine what is usual. If, in the sale of the goods confided to him, it is usual in the market to give a warranty, the agent may give that warranty in order to effect the sale." Benjamin on Sales, § 624. Citing Bayliffe v. Butterworth, 1 Exch. 425; Graves v. Legg, 2 H. & N. 210; Pick ering v. Busk, 15 East, 38. To the same effect are: Reese v. Bates, 94 Va. 321; Lanson v. Taylor, 86 Wis. 281; Westurn v. Page, 94 Wis. 251. 66 Authority, without restriction, to the agent to sell, carries with it authority to warrant." Schuchardt v. Allens, 68 U. S. (1 Wall.) 359. Citing Andrews v. Kneeland, 6 Cow. (Y. Y.) 354; Monte Allegre, 22 U. S. (9 Wheat.) 616, 647. "The idea upon which is founded the right to warrant on the part of an agent to sell a particular article, is that he has been clothed with power to make all the common and usual contracts necessary or appropriate to accomplish the sale of the article entrusted to him, and if in the sale of that kind or class of goods, thus confided to him, it is usual in the market to give a warranty, the agent may give that warranty in order to effect a sale, and the law presumes that he has such authority. If the agent with express authority to sell, has no actual authority to warrant, no authority can be implied where the property is of the description not usually sold with warranty." Wait v. Borne, 123 N. .Y. 592, 607. Citing Smith Tracy, 36 N. Y. 79; approved in Bierman v. City Mills Co., 151 N. Y. 482, 489, 37 L. R. A. 799. "An agent authorized to sell property in the absence of any express limitation of his powers, is authorized to make any declaration in regard to the property or to do any act which may be found necessary to make a sale, and which is usual and incident thereto. (Ahern v. Goodspeed, 72 N. Y. 108.) It must be usual for the agent to have power to warrant in order to carry out the object and to sell the article confided to him for sale, before the law will imply such power, and it is a ques implied authority to give a usual warranty will not prevent the warranty from arising in the absence of the buyer's actual notice of it.51 3. A mere special agent to sell has no authority to warrant quality or condition.52 "The plaintiff proved no custom to the effect that such sales were usually attended with the warranty, and therefore in the absence of such proof and because of the failure to show any express authorization by the defendant to Nichols to sell, it cannot be said that any express warranty accompanied the sale. Even if Nichols had been employed to sell the goods, unless he was given express power to warrant, he could not give a warranty which would bind his principal, unless the sale was one which was usually accompanied with warranty." Bierman v. City Mills Co., 151 N. Y. 482, 488, 37 L. R. A. 799. But some cases seem to hold that the agent's authority to warrant may be implied without such a custom. Talmage v. Bierhause, 103 Ind. 270; Murray v. Brooks, 41 Ia. 45; First National Bank v. Robinson, 105 Ia. 463; Flatt v. Osborne, 33 Minn. 98; Deming v. Chase, 48 Vt. 382; Boothby v. Scales, 27 Wis. 626, 635. In an action on a breach of warranty made by agents in the sale of a mare, the court said, they were not expressly authorized to make any warranty or representation relative to the quality of the mare." No implied authority to warrant arose by reason of this agency for the purpose of making a sale. Decker v. Fredericks, 47 N. J. L. (18 Vroom) 469. A statement in a letter of instructions from the seller to his agent relative to hams offered for sale, that there is an occasional ham sour in the marrow, is not a warranty that not so many as one-third of the hams were sour in the marrow. Wiggin v. Butcher, 154 Mass. 447. Citing Hogins v. Plympton, 28 Mass. (11 Pick.) 97. 49. Meyer Bros. Drug Co. V. Puckett, 139 Ala. 331; Upton v. Suffolk Co. Mills, 65 Mass. (11 Cush.) 586; Bierman v. City Mills Co., 151 N. Y. 482, 37 L. R. A. 799; Westurn v. Page, 94 Wis. 251. 50. Herring v. Skaggs, 62 Ala. 180, 73 Ala. 446; McCormick V. Kelly, 28 Minn. 135; Wait v. Borne, 123 N. Y. 592, 604; Canham v. Piano Mfg. Co., 3 N. Dak. 229; Reese v. Bates, 94 Va. 321; Pickert v. Marston, 68 Wis. 465; Benjamin on Sales, § 624. And it may be so notorious that the court will take judicial notice of it. Talmage v. Bierhause, 103 Ind. 270; Ahern v. Goodspeed, 72 N. Y. 108, 114. The usage must be so fully established and well known that the parties have knowledge of it, and that they contracted with reference to it may be presumed. Herring v. Skaggs, 73 Ala. 446, 62 Ala. 180; Murray v. Brooks, 41 Ia. 45. For the presumption is rebuttable, and not sustained by a local usage. Pickert v. Marston, 68 Wis. 465. An agent to sell has implied power to sell upon condition. Pitsinowsky v. Beardsley, 37 Ia. 9; Warder v. Robertson, 75 Ia. 585; Deering v. Thom, 29 Minn. 120; Oster v. Mickley, 35 Minn. 245; Bannon v. Aultman, 80 Wis. 307. 51. Canham v. Plano Mfg. Co., 3 N. Dak. 229; Boothby v. Scales, 27 Wis. 626. 52. Herring v. Skaggs, 73 Ala. 446, 62 Ala. 180; Decker v. Fredericks, 47 N. J. L. (18 Vroom) 469; SALE BY SAMPLE.-In a sale by sample the agent has an im Caffre v. Lockwood, 22 N. Y. App. Div. 11; Smith v. Tracy, 36 N. Y. 79; Wait v. Borne, 123 N. Y. 592, 604; Westurn v. Page, 94 Wis. 251. "A special agent (is) one constituted for a specific act and under an express power; as to such an agent it is settled that he does not bind his principal unless his authority be strictly pursued and those dealing with him are chargeable with notice of its extent." Cooley v. Perrine, 41 N. J. L. (12 Vroom) 322, 324-5. "A direction to sell, nothing more appearing, would confer upon a special agent no authority beyond that of agreeing with the purchaser with reference to these component particulars (price and transfer of property). Under certain circumstances a sale legally imports more than these particulars, and in such cases the authority under a power to sell would be correspondingly enlarged. Thus if a sale be made by sample, it is thereby impliedly warranted that the bulk is of as good quality as the sample. Hence, it has been properly held that where a broker was empowered to sell goods which were in bulk, and by the custom of brokers it was permissible to sell such goods by sample, and he was not restricted by his instructions as to the mode of sale, his sale by sample and warranty of quality therein implied were binding upon his principal. The Monte Allegre, 23 U. S. (9 Wheat.) 616; Andrews v. Kneeland, 6 Cow. 354; Schuchardt v. Allen, 68 U. S. (1 Wall.) 354, 359. But in a sale of a horse, subject to the buyer's inspection, no warranty of quality is implied, and it seems a short and clearly direct reasoning from facts thence to conclude that in order to make such a sale, no authority so to warrant is implied. Warranty is outside of the sale and he who is empowered to make the warranty must have some other power than to sell." Cooley v. Perrine, 41 N. J. L. (12 Vroom) 322, 325, 326. Citing and distinguishing Brady v. Todd, 9 C. B. (N. S.) 592; Fenn v. Harrison, 3 T. R. 757, 4 T. R. 177; Helyear v. Hawke, 5 Esp. 73; Alexander v. Gibson, 2 Camp. 555; Lane v. Dudley, 6 N. C. (2 Murph.) 119; Skinner v. Gunn, 9 Port. (Ala.) 305; Gaines v. McKinley, 1 Ala, 446 (warranty of soundness of slave); Cocke v. Campbell, 13 Ala. 286 (warranty of soundness of a slave); Bradford v. Bush, 10 Ala. 386 (warranty of age of horse); Ezell v. Franklin, 34 Tenn. (2 Sneed) 236 (warranty of soundness of slave); Tice v. Gallup, 2 Hun (N. Y.), 446 (authority to sell horse gives authority to warrant age); Nelson v. Cowing, 6 Hill (N. Y.), 336; Upton v. Suffolk Co. Mills, 65 Mass. (11 Cush.) 586 (ageney to sell flour does not give agency to warrant keeping during sea voyage); Bryant v. Moore, 26 Me. 84 (warranty of oxen held invalid); Lipscomb v. Kittrell, 30 Tenn. (11 Humph.) 226 (authority to sell claim gives no authority to guarantee); Smith v. Tracey, 36 N. Y. 91 (agency to sell stock gives no authority to warrant); Howard v. Sheward, L. R. 2 C. P. 148 (horse dealer's agent to sell horse has authority to warrant quality). To the same effect are Hunter v. Jameson, 28 N. C. (6 Ired.) 252; Woodford v. McClenahan, 9 Ill. 85; Milburn v. Belloni, 34 Barb. (N. Y.) 607. "If when the vendor acquires knowledge and he cannot in justice to himself disavow the whole of his agent's contracts, he is entitled to stand upon what he is authorized and disavow the rest. The purchaser who dealt with a special agent without noting the bounds of his power must suffer rather than the innocent principal. Bryant v. Moore, 26 Me. 84." Cooley v. Perrine, 41 N. J. L. (12 Vroom) 322, 332. plied authority to make an express warranty of correspondence of the bulk with the sample. 53 LIMITATION OF AUTHORITY.-A limitation of an agent's usual authority to warrant does not affect the purchaser's rights unless he has actual notice thereof, but the limitation coming to the purchaser's actual knowledge is effective.55 An unusual warranty 54 An auctioneer has no implied authority to bind his principal by warranty. Court v. Snyder, 2 Ind. App. 440; Blood v. French, 75 Mass. (9 Gray) 197; Schell v. Stephens, 50 Mo. 375. "For sales at auction, in the usual mode, are never understood to be accompanied by a warranty. Auctioneers are special agents, and have only authority to sell, and not to warrant, unless specially instructed so to do." The Monte Allegre, 22 U. S. (9 Wheat.) 616, 647. Brokers are special agents. Dodd v. Farlow, 93 Mass. (11 Allen) 426. As to selling agents generally. See Upton v. Suffolk Co. Mills, 65 Mass. (11 Cush.) 586. A partner of a firm dealing in horses has authority to bind the firm by a warranty. Edwards v. Dillon, 147 Ill. 14. As to warranty of horses by agents. See Gaines v. McKinley, 1 Ala. 446; Skinner v. Gunn, 9 Port. (Ala.) 305; Bradford v. Bush, 10 Ala. 386; Cooley v. Perrine, 41 N. J. L. (12 Vroom) 322; Tice v. Gallup, 2 Hun (N. Y.), 446; Lane v. Dudley, 6 N. C. (2 Murph.) 119; Ezell v. Franklin, 34 Tenn. (2 Sneed) 236; Deming v. Chase, 48 Vt. 382; Howard v. Sheward, L. R. 2 C. P. 148; Brady v. Todd, 9 C. B. (N. S.) 592; Helyear v. Hawke, 5 Esp. 72; Alexander v. Gibson, 2 Camp. 555; Brooks v. Hassall, 49 L. T. (N. S.) 569; Baldry v. Bates, 52 L. T. (N. S.) 620; Taylor v. Gardiner, 8 Manitoba, 310. The authority of a bookkeeper to insert a warranty in a bill of sale, as well as the warranty itself, may be inferred, among other things, from an advertisement that "each and every horse will be warranted as represented," published by the vendor and read by the authorities of the sale. If the warranty is given before the payment and delivery of the horse, there is a sufficient consideration; otherwise, if after the payment and delivery. McGaughey v. Richardson, 148 Mass. 608. 53. Schuchardt v. Allen, 68 U. S. (1 Wall.) 359; Randall v. Kehlor, 60 Me. 37, 47; Nelson v. Cowing, 6 Hill (N. Y.), 336; Andrews v. Kneeland, 6 Cow. (N. Y.) 354; Murray v. Smith, 4 Daly (N. Y.), 277; Dayton v. Hooglung, 39 Ohio St. 671. In the absence of an express warranty by the agent the law implies a warranty of correspondence. 54. Murray v. Brooks, 41 Ia. 45; Canham v. Plano Mfg. Co., 3 N. Dak. 229. 55. Wood Machine Co. v. Crowe, 70 Ia. 340; Griffith v. Field, 105 Ia. 362; Furneaux v. Easterly, 36 Kans. 539. An agent's authority to warrant implied from his authority to sell is confined to the particular sale, and does not extend to future sales made by his principals. "Whatever may be law in regard to the customary power of an agent to warrant the article which he sells, there is no case which I have found after considerable search in which it has ever been held that an agent to sell a particular article has the right not only to warrant the article which he then sells, but to warrant all which may thereafter be sold by his principals to the party with whom he closes his own sale. But nowhere is there any rule laid down that I have been able to find enlarging the scope of the given by an agent having authority to give a usual warranty is not binding.56 RATIFICATION. The principal may ratify his agent's unau thorized warranties.57 Section 13. Implied Warranties of Title.—In a contract to sell or a sale, unless a contrary intention appears, there is (1.) An implied warranty on the part of the seller that in the case of a sale he has a right to sell the goods, and that in the case of a contract to sell he will have a right to sell the goods at the time when the property is to pass, (2.) An implied warranty that the buyer shall have and enjoy quiet possession of the goods as against any lawful claims existing at the time of the sale, (3.) An implied warranty that the goods shall be free at the time of the sale from any charge or incumbrance in favor of any third person, not declared or known to the buyer before or at the time when the contract or sale is made. (4.) This section shall not, however, be held to render liable a sheriff, auctioneer, mortgagee, or other person professing to sell, by virtue of authority in fact or law, goods in which a third person has a legal or equitable interest. The earlier English rule was that there was an implied warranty of title in a contract to sell or an executory contract,1 but that in the present sale of specific goods there was no implied warranty of title unless an affirmation to that effect was expressed or implied by the vendor's conduct or words, or from the nature and circumstances of the sale.2 agent's power to warrant beyond the necessities of the case so as to include subsequent sales not made by himself but by his principals." Wait v. Borne, 123 N. Y. 592, 603. 56. Herring v. Skaggs, 62 Ala. 180; Keith v. Hirschberg Optical Co., 48 Ark. 138; Graul v. Strutzel, 53 Ia. 712; Upton v. Suffolk Co. Mills, 65 Mass. (11 Cush.) 586; Anderson v. Bruner, 112 Mass. 14; Palmer V. Hatch, 46 Mo, 585. 57. Combs v. Scott, 94 Mass. (12 Allen) 493; Smith v. Tracy, 36 N. Y. 79. "Nor did the ratification of Nichols' act, through the adoption of the sale by the delivery of the felts, bind the defendant to make good his warranty or all of his representations. The rule is well settled that ratification must be with full knowledge of the agent's acts." Bierman v. City Mills Co., 151 N. Y. 482, 488-9, 37 L. R. A. 799. 1. Benjamin on Sales, § 627. 2. Morley v. Attenborough, 3 Exch. 500; Hall v. Conder, 2 C. B. (N. S.) 22; Smith v. Neale, 2 C. B. (N. S.) 67; Chapman v. Speller, 14 Q. B. (Ad. & El.) 621; Sims v. Meryatt, |