UNAUTHORISED WARRANTY BY SERVANT. 545 



Unauthorised tvarranfy Inj servant. — In Brady v. Tod (30 L.J. (N.S.) 

 223 C.P.), it was decided that the servant of a private owner entrusted 

 on one particnhir occasion, not at a fair or other public mart, to sell and 

 deliver a horse, is not therefore by law authorised to bind his master by 

 a, warranty ; but the buyer who takes a warranty in such a case takes it 

 at the risk of being able to prove that the servant had his master's 

 authority to give it. The defendant was not a horse-dealer, but a 

 tradesman residing in London, who also had a farm in Essex, which 

 was managed by his bailiff Greig ; and the latter, by the defendant's 

 authority, sold the horse in question to the plaintiflF, and, as the jury 

 found, with a warranty that it was sound and quiet in harness ; but it 

 was also proved that the defendant gave no authority to Greig to give 

 any warranty. The horse having turned out vicious in harness, the 

 plaintiff brought this action and recovered, leave being reserved to the 

 defendant to enter a nonsuit. And per Erie C.J. : " Upon this rule to 

 set aside the verdict for the plaintiff, and enter it for the defendant, on 

 the plea denying the warranty of a horse, the question has been, whether 

 the warranty by the defendant was proved. The jury have found that 

 Greig in selling the horse for the defendant warranted it to be sound 

 and quiet in harness. The defendant stated, and it must on this 

 motion be taken to be true, that he did not give authority to Greig to 

 give any warranty. 



" The relevant facts are, that the plaintiff applied to the defendant, 

 who is not a dealer in horses, but a tradesman with a farm, to sell the 

 liorse ; that the defendant sent his farm-bailiff Greig with the horse to 

 the plaintiff, and authorised him to sell it for 30 guineas. The plaintiff 

 contends that an authority to sell and deliver imports an authority to 

 him to w^arrant. The subject has been frequently mentioned by judges 

 and text writers, but we cannot find that the point has been ever 

 decided. It is therefore necessary to consider it on principle. The 

 general rule that the act of an agent does not bind his principal, unless 

 it was within the authority given to him, is clear ; but the plaintiff 

 contended that the circumstances created an authority in the agent to 

 warrant on various grounds ; among others, he referred to cases where 

 the agent has by law a general authority to bind his principal, though 

 as between themselves there was no authority, such as partners, masters 

 of ships, and managers of trading business ; and stress was laid on the 

 expressions of several judges, that the servant of a horse-dealer or a 

 livery-stable keeper can bind his master by a warranty, though as 

 between themselves there was an order not to warrant. See Helyear v. 

 Hatvke (5 Esp. 72), Alexander v. Gibson (2 Camp. 555), and Fenn 

 v. Harrison (3 T. K. 759). We understand those judges to refer to a 



