(kk) Weston v. Alley, 49 Maine, 94. But see State v. Atherton, 16 N. H. 203; Stevenson v. Hoy, 43 Penn. St. 191; Hatch v. Coddington, 95 U. S. 48.

(kl) Tod v. Benedict, 15 Ia. 591. See Lumpkin v. Wilson, 5 Heiskell, 555. See also Herring v. Hottendorf, 74 N. C. 588; Silliman v. Fredericksburg, etc. R. Co. 27 Gratt. 119; Wanless v. McCandless, 38 Ia. 20; Baxter v. Lamont, 60 Ill. 237; Meade v. Brothers, 28 Wis. 689.

(km) Olyphant v. McNair, 41 Barb. 446; Rice v. Tavernier, 8 Minn. 248.

(l) Delafield v. Illinois, 26 Wend. 192.

(ll) Simonds v. Clapp, 16 N. H. 222.

(m) Huckman v. Fernie, 3 M. & W. 505.

(n) Everett v. Desborough, 5 Bing. 503; Fitzherbert v. Mather, 1 T. R. 12.

(nn) Force v. Dutcher, 3 Green, 401; Lyon v. Pollock, 99 U. S. 668.

(o) Nelson v. Cowing, 6 Hill (N. Y.), 336; Woodford v. McClenahan, 4 Gilman, 85; Hunter v. Jameson, 6 Ired. L. 252; Franklin v. Ezell, 1 Sneed, 497; Schu-chardt v. Aliens, 1 Wall. 359.

(p) Gibson v. Colt, 7 Johns. 390; Hel-year v. Hawke, 5 Esp. 72; Croom v. Shaw, warranty of the quality of what he sells. (q) But even where usage would permit a warranty, if the principal gives hi express instructions not to warrant, and the agent does warrant, although it has been said that such warranty is not binding on the principal, on the general ground that no principal is bound by the acts of his agent if such acts transcend his authority, (r) yet the better opinion is that the principal is bound by such warranty, where the buyer was justified by the nature of the case in believing that this authority was given, and had no means of knowing the limitation of the authority of the agent. (s)

1 Where a principal sends a written order capable of two interpretations, and the agent bona fide acts upon one of them, the principal cannot be released from his contract on the ground that he intended it to bear the other. Ireland v. Livingston, L. R. 5 H. L. 395. - K.

- Whether a sale is one which is usually attended with warranty is a question of fact to be determined in the light of all surrounding circumstances. Herring v.

1 Flor. 211; Smith v. Tracy, 36 N. Y. 79. A sale by sample is a warranty that the bulk shall correspond with the sample; and a general authority to sell goods at wholesale is an authority to sell by sample. Andrews v. Kneeland. 6 Cowen, 354. An agent to sell a horse may warrant his soundness. Alexander v. Gibson, 2 Camp. 555; Bradford v. Bush, 10 Ala. 386. See Brady v. Todd, 9 C. B. (n. s.) 592. In Alabama, an authority to sell a slave has been held to imply an authority to warrant. Skinner v. Gunn, 9 Port. (Ala.) 305; Gaines v. McKinley, 1 Ala. 446. But an agent to deliver has no authority to warrant. Woodin v. Burford, 2 Cr. & M. 291, 4 Tyr. 264. In judicial sales there is no warranty express or implied. The Monte Allegre, 9 Wheat. 616.

(q) Blood v. French, 9 Gray, 197; Brady v. Todd, 9 C. B. (n. s.) 592.

(/) Lord Kenyon, Pens v. Harrison, 3 T. R. 760; Dodderidye, Seignior and Wolmer's case. Godb. 361.

(s) Boothby v. Scales, 27 Wis. 626. Ashhurst, J., Fenn v. Harrison, 3 T. R. 760, who said: "I take the distinction to be that if a person keeping livery stables, and having a horse to sell, directed his servant not to warrant him, and the ser-vant did nevertheless warrant him, still the master would be liable on the warranty, because the servant was acting within the general scope of his authority, and

Skaggs, 62 Ala. 180; s. c. 73 Ala. 446; Pickert v. Marston, 68 Wis. 465. But where it is a matter of general knowledge that a warranty is usual in certain classes of sales, the court will take judicial notice of this. Thus where the goods sold were not in the hands of the selling agent, and therefore not subject to inspection, the court held authority to warrant was implied. Talmage v. Bierhause, 103 Ind. 270. And see Ahem v. Goodspeed, 72 N. Y. 108; Wait v. Borne, 123 N. Y. 592.

In sales of agricultural implements by travelling agents, it has been held that a warranty by the agent is usual, and therefore binds the principal, whether the agent had in fact authority to warrant or not. Murray v. Brooks, 4 Ia. 45: McCormick etc. Co. v. Snell, 23 Ill. App. 79; McCormick v. Kelly, 28 Minn. 135; Flatt v. Osborne, 33 Minn. 98; Boothby v. Scales, 27 Wis. 626.

For decisions on particular facts as to the liability of a principal for an unauthorized warranty, see also Howard v. Sheward, L. R. 2 C. P. 148; Applegate v. Moffitt, 60 Ind. 104; Harrison v. Shanks, 13 Bush. 620; Randall v. Kehlor. 60 Me. 37; Anderson v. Bruner, 112 Mass. 14; Palmer v. Hatch, 46 Mo. 585; Morris v. Bowen, 52N.H.416; Cooley v. Perrine, 41 N. J. L. 322; Decker v. Fredericks, 47 N. J. L. 469; Baker v. Arnot, 67 N. Y. 448; Fay v. Richmond, 43 Vt. 25; Deming v. Chase, 48 Vt. 382; Pickert v. Marston, 68 Wis. 465.

Where one adopts a sale made by another as his agent, he cannot repudiate a warranty which is an essential part of the contract. Churchill v. Palmer, 115 Mass 310; Eadie v. Ashbaugh, 44 Ia. 519.

In First Nat. Bank of Las Vegas v. Oberne, 121 Ill. 25, an agent sold a note belonging to his principal to the plaintiff hank, giving an unauthorized guaranty to induce the sale. The proceeds of the note were put to the credit of the principal, and the agent subsequently drew the money on checks signed with his principal's name, which he had authority to sign. About half of the proceeds of the note appeared to have been used for the principal's benefit. It was held that to this extent the principal was liable on the guaranty.

6l them. (v)1 But, to this extent, the principal will be held. Thus, if a principal supply an agent with his acceptances in blank, as to date, amount, time, and place of payment, but payable to the order of that correspondent, though part of these acceptances may bear upon their face that they are the second of exchange, yet if the correspondent fraudulently negotiate those marked second, the acceptor will be liable to an innocent holder for value for the amount which they represent.(w) An express power to indorse does not imply a power to receive notice of dishonor. (x) It may be stated as a general rule that retaining money procured by an indorsement will be regarded as a ratification of the authority to indorse. (xx)

The usage of the trade or business is of great importance in determining all these questions; but this important distinction seems to be taken between the case of a written authority and that of an oral authority, namely, - where the authority is oral and is known to the party dealing with the agent, usage may enlarge and affect the authority, or the contract; but, as has been already stated, usage has not this power where the whole authority is in writing, and this is known to the party dealing with the agent. (/)

If a principal sells goods by an agent, and the agent makes a material misrepresentation which he believes to be true, and his principal knows to be false, this is the falsehood of the principal and avoids the sale. (u)

*An agent's acts in making or transferring negotiable paper (especially if by indorsement) are much restrained. It seems that they can be authorized only by express and direct authority, or by some express power which necessarily implies these acts, becaues the power cannot be executed without the public cannot be supposed to be cognizant of any private conversation between the master and servant; 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 warranty, because the servant was not acting within the scope of his employment." So per Bayley, J., Pickering v. Busk, 15 East, 45. And see Howard v. Sheward, L. R. 2 C. P. 148.

(t) Attwood v. Munnings, 7 B. & C. 278; s. c. 1 Man. & R. 66; Schimmel-pennich v. Bayard, 1 Pet. 264. See also Wood etc. Machine Co. v. Crow, 70 Ia. 340; Furneaux v. Easterly, 36 Kan. 539.

(u) Schneider v. Heath, 3 Camp. 506. And this is true although the representations are of such a character that the principal is not bound by them; for, as was said by Lord Abinger in Cornfoot v. Fowke, 6 M. & W. 386; "It does not follow that because he is not bound by the representation of an agent without authority, he is therefore entitled to bind another man to a contract obtained by the false representation of that agent. It is one thing to say that he may avoid a contract if his agent, without his authority, has inserted a warranty in the contract; and another to say that he may enforce a contract obtained by means of a false representation made by his agent, because the agent had no authority." Cornfoot v. Fowke, 6 M. & W. 358, was an assumpsit for the non-performance of an agreement to take a ready-furnished house. The plaintiff had employed C. to let the house in question, and the defendant, being in treaty with C. for taking it, was informed by him that there was no objection to the house, but after entering into the agreement, discovered that the adjoining house was a brothel, and on that account declined to fulfil the contract. It appeared that the plaintiff knew of the existence of the brothel before, but C, the agent, did not. The majority of the court held, con-trary to the opinion of Lord Abinger, C. B., that these facts furnished no ground of defence to the action. This case has been very much questioned from the first, and was overruled in Fuller v. Wilson, 3 Q. B. 58. The judgment in the latter case was indeed reversed in the Exchequer Chamber, 3 Q. B. 68, but not on this point. [And Cornfoot v. Fowke is now supported in England only as deciding a point of pleading. National Exchange Co. v. Drew, 2 Macq. 103, 144; Ludgater v. Love, 44 L. T. Rep. 694; Barwick v. English Joint Stock Banking Co. L. R. 2 Ex. 259, 262]. In this country, Cornfoot v. Fowke was denied to be law by the court in Fitzsimmons v. Joslin, 21 Vt. 129. And see Crump v. U. S. Mining Co. 7 Gratt. 352. See also infra, p. *74, note 1.