Lansing v. Coleman , 58 Barb. 611 ( 1871 )

By the Court, Talcott, J.

This is an action for fraudulent representations alleged to have been made by the defendant, on the sale to the plaintiffs of the defendant’s interest in a copartnership engaged in the manufacture and sale of the Spencer fruit jars. In addition to the testimony concerning the statements ma<|e by the defendant at the time of the sale, the plaintiffs were allowed, against the objection and exception of the defendant, to give in evidence certain representations made by one Bussell to the plaintiffs, preliminarily to the negotiation between the plaintiffs and the defendant. The only connection between the defendant and Bussell in reference to the matter, was, that the defendant had previously requested Bussell to procure a purchaser for the property in question, and agreed, in case he did so, to give him a certain portion of the purchase money, if a purchaser was found at a certain price. There was no evidence of any representations by the defendant to Bussell, or of any express authority to Bussell to make any representations or statements, and no proof of any knowledge on the part of the defendant that any representations or statements had been made by Bussell; nor was there any authority given to Bussell to make a sale of the property.

Under these circumstances, we think the representations made by Bussell were not admissible in evidence. Bussell was not clothed with any real or apparent authority to make any representations on the subject. To hold that a person not authorized to make a sale, but simply to advertise the property for sale, and procure some one to negotiate with the owner, can make representations or warranties binding upon the owner, without his authority or knowledge, would be too dangerous. The well known office of such an agent is merely to initiate a negotiation, not to complete one. The parties proposing in such a case to purchase, are necessarily referred to the principal, for the actual negotiation, and there is no hardship in requiring, but on the contrary, common prudence, and justice to the vendor, would seem to demand, that the purchaser should go to him for the facts which are to influence the purchase. There was no ratification of any representations made by Bussell in this case, as it does not appear that the defendant had any knowledge of, or reason to suppose that any representations had been made. We think the case is within the principle laid down in Smith v. Tracy, (36 N. Y. 79.)

[Fourth Department, General Term, at Buffalo, February 6, 1871.

It is urged by the plaintiffs that the testimony on this subject was immaterial, inasmuch as it is claimed that the defendant himself was proved to have made the same representations at the time of the sale. We cannot see, however, that the jury may not, as they might under the ruling of the court, have based their verdict to some extent on the representations claimed to have been made by Bussell;

A new trial must be granted, costs to abide the event.

Mullin, P. J., and Johnson and Talcott, Justices.]