126 



WAERANTY; SALE AND WAREANTY BY AGENT, ETC. 



"Warranty by 

 a stranger 

 forbid to give 

 one. 



Master un- 

 willing to 

 stand by his 

 servant's 

 warrantv. 



Rule as to a 

 servant bind- 

 ing his master. 



world that the general authority is circumscribed (k). And 

 if a person keeping /irenj stables, and having a horse to sell, 

 directs his servant not to warrant him, and the servant 

 does nevertheless warrant him, the master is liable on the 

 warranty, because the servant was acting within the 

 general scope of his authority, and the public cannot be 

 supposed to be cognizant of any private conversation 

 between the master and servant {x). And where the owner 

 of a horse sold by a Iwery-stahh keeper with a warranty 

 went to the buyer and requested to have the horse back, 

 stating that he did not authorize the warranty of soundness, 

 and the buyer refused to give it up, saying, " I know 

 nothing of you, I bought the horse of Mr. Osborne ; " such 

 a refusal was held to be no waiver of the warranty (//). 



But if the owner of a horse were to send a stranger to 

 a fair, with express directions not to warrant the horse, 

 and the latter acted contrary to the orders, the purchaser 

 could only have recourse to the person who actually sold 

 the horse, and the owner would not be liable on the war- 

 ranty, because the servant was not acting within the scope 

 of his employment {%) . 



But if the master, under such circumstances, is unwilling 

 to stand to the warranty given by his servant, he is bound 

 to take back the horse and return the money if it has 

 been paid (s). And on this point Lord Abinger, C. B., 

 said, " Put the ordinary case of a servant employed to sell 

 a horse, but expressly forbid to warrant him sound. Is it 

 contended that the buyer, induced by the warranty to give 

 ten times the price which he would have given for an un- 

 sound horse, when he discovers the horse to be unsound, 

 is not entitled to rescind the contract ? This would be to 

 say, that though the principal is not bound by the false 

 representation of an agent, yet he is entitled to take advan- 

 tage of that false representation, for the purpose of obtaining 

 a contract beneficial to himself, which he could not have 

 obtained without it " («). 



The general rule, then, in selling a horse by a servant or 

 agent, appears to be the following : — That the master or 



{u) Per Baylev, J., Pickering v. 

 Siisk, 15 East, -lo ; 13 R. E. 364 ; 

 Srady v. Todd, 9 C. B., N. S. 604. 



(x) Per Ashurst, J., IFcim v. Har- 

 rison, 3 T. R. 760. See also 

 Houard\. Shnoard, L. E., 2 C. P. 

 148. 



{y) Best \. Osborne, 2 0. i- P. 74. 



(j) Per Ashurst, J., };ii)/ v. Jlar- 

 rismi, 3 T. R. 761 ; and Scotland 

 {Bank) v. Watson, 1 Dow, 45 • 14 

 R. R. 11. 



(a) Cornfoot v. Foh-Iv, 6 JI. &"W. 

 381. 



