Philips & Buttorff M'f'g Co. v. Wild Bros. , 144 Ala. 545 ( 1905 )

SIMPSON, J.

The record in this case shows that the defendants, by leave of the court, amended their pleas, and issue was joined. No demurrers were filed to the pleas as amended, and the record does not show what the amendments were. Consequently this court cannot say Avhat pertinency the demurrers to the pleas before amendment had.

For the same reason we cannot say that, the court erred in allowing the witnesses Wild to testify about the “Pieces of stoves which defendants claimed were broken,” although the 6th original plea did make claim for such pieces. As to the other ground of the 5th assignment, the witness had testified that Featherstone was the agent of plaintiff Avho sold him the goods, and the point AA’as made that it Avas improper to alloAA7 proof of representations, agreements, or guaranties made by the agent of plaintiff in the sale of the goods, without first proving that he had authority to make such representations, agreements, etc.

This is a. point in regard to which there is some confusion in the authorities, and 'we hold that while it is true that, when the vendee is the actor in a suit against the vendor on a Avarranty given by an agent of the vendor in the sale of chattels, it devolves npon the plaintiff to sIioav that the agent had authority to make the warranty either by direct proof, or by proof of a general custom to that effect. — Herring, Ferrell & Sherman v. Scaggs, 62 Ala. 18; s. c. 73 Ala. 446.

Yet, Avhere the agent, in selling chattels for the vendor, makes representations, agreements or guaranties, as a part of the contract of sale, and suit is brought by the vendor against the Amndee, he is bound by the agreement of the agent. He cannot ratify the contract of sale in part and repudiate it in part. It is his duty to ascertain, and not the duty of the purchaser to inform him, what representations have been made by the agent. Williamson v. Tyson, 105 Ala. 644, 653; Atwood v. Wright, 29 Ala. 346, 351-2; Elwell v. Chamberlain, 31 N. Y. 611, 619, 620; Rogers v. Empkie Co., 24 Neb. 653; Busch v. Wilcox (82 Mich. 336), 21 Am. St. Rep. 563; Haskell v. Starbird (152 Mass. 117), 23 Am. St. Rep. 809.

It appears from the evidence that the off-set AAdrich the defendants claim on account of failure in the guaranty made by the plaintiff’s agent, were on items purchased by the defendant previous to the commencement of the account sued on in this case. Consequently, it Avas incumbent on the defendant to prove the authority of the agent to make the guaranty. There being no proof of such authority the testimony in regard to these items, showing the guaranty, should have been excluded.

The application for rehearing is granted, the judgment of the court is reversed and the cause remanded.

McClellan, C. J., Tyson and Anderson, JJ., concurring.