SALE AND WARRANTY BY AN AGENT. 125 



This statement appears to be justified by the judgment of 

 the Queen's Bench Division in Baldrij v. Bates (r). In 

 that case the defendant, the keeper of a riding-school, 

 agreed through his servant to send a horse to the plaintiff 

 on trial. The servant warranted that the horse could be 

 safely put into a stable where other horses of the plaintiff's 

 were. At the trial the jury found that at the time the 

 horse was suffering from the mange, and that the defen- 

 dant's servant was aware of it. The judge, on further con- 

 sideration, found, as a fact, that the defendant was a horse- 

 dealer, and, therefore, liable on the warranty given by his 

 servant. On appeal to the Divisional Court it was held 

 (reversing the judgment of Huddleston, B.) that the judge 

 had no power to find any such fact, and that as it had not 

 been found by the jury, the defendant would not be bound 

 by any warranty given by his servant as to the soundness 

 of any horse offered by him for sale ; and, further, that as 

 the warranty given had not been given on the soundness of 

 the horse, but on an incidental matter, the servant, even if 

 the defendant had been a horsedealer, would not have been 

 clothed with authority to give such a warranty. 



What an agent says as a warranty or representation at Warranty by 

 the time of sale respecting the thing sold, is evidence ^Jg"'™* "*'"' 

 against the principal ; but not what he has said at another 

 time, whether to the purchaser, or to a stranger, unless it is 

 a statement accompanying an act done in the course of his 

 agency (s). And Lord EUenborough said, '' If the servant 

 is sent with a horse by his master, and which horse is 

 offered for sale, and gives the direction respecting his sale, 

 I think he thereby becomes the accredited agent of his 

 master, and what he has said at the time of sale, as part of 

 the transaction of selling, respecting the horse, is evidence ; 

 but an acknowledgment to that effect, made at another 

 time is not so : it must be confined to the time of actual 

 sale, when he was acting for his master. I think, the 

 master having entrusted the servant to sell, he is entrusted 

 to do all he can to effectuate the sale ; and if he does 

 exceed his authority in so doing he binds his master " (;!). 



If the servant of a horsedealer, with express directions Warranty by 

 not to warrant do warrant, the master is bound ; _ because ^i'^^to'^gfye'"" 

 the servant having a general authority to sell, is in a con- one. 

 dition to warrant, and the master has not notified to the 



(r) 1 Times L. E. 558. 5 Esp. 133 ; 1 Tayl. Evid. 4th ed. 



(s) Per Erskine, J., Allen v. Den- 526. 

 stone, 8 C. & P. 760 ; FetOT. Sague, [t) Selyer y. Eawke, 6 Esp. 72. 



