Opinion
September Term, 1890.
Damages — Warrants of Soundness — Deceit — Authority of Agent.
The plaintiff was employed by the defendant and another to sell some horses for him, among which was a mare which he swapped off. Afterwards, he paid, without authority of defendant, damages for the unsoundness of the mare in compromise of a suit against him for a breach of warranty. He had no authority to warrant, nor did it appear that he did warrant, the mare to be sound: Held, that the plaintiff, in an action against the defendant for the money so paid in compromise of the suit for damages, was not entitled to recover.
APPEAL from a justice of the peace.
(730) J. F. Morphew for plaintiff.
Q. F. Neal and W. H. Bower for defendant.
This is not an action for deceit in falsely representing the mare as sound, when the defendant knew to the contrary, but an action commenced before a justice of the peace to recover money alleged to have been paid by the plaintiff as damages, "to a man in South Carolina," on account of a breach of warranty in the sale of an unsound horse, which he had sold, as agent for the defendant and Jonathan Osborne, with warranty.
We need not consider the question of power of authority of the plaintiff, as agent, to warrant the mare sold by him for the defendant. His own testimony, though not very clear, for it seems there were two trades, fails to show any warranty. He says that he told the "man" with whom he traded that the mare belonged to McCoy, and "was sound so far as (he) I knew." This was not even an affirmation of soundness, as was the case in Horton v. Green, 66 N.C. 596, in which it is said, citing Baum v. Stevens, 24 N.C. 411, and Erwin v. Maxwell, 7 N.C. 241, that such an affirmation of soundness does not, per se, amount to a warranty, but may be submitted to the jury, with attendant circumstances, to say whether the affirmation was intended as a warranty. The plaintiff sold the mare, not affirming her soundness, but only saying that she was sound so far as he knew. If knowingly false, it might have been cause for an action of deceit, but it was no warranty. The plaintiff, in 1889, near four years after the sale of 1885, though advised by (731) a lawyer, to whom he paid a fee of $2.50, to compromise, had no authority from the defendant to pay the money sought to be recovered, for him, and he (the defendant) is under no legal obligation to reimburse the plaintiff for money so paid, not at his request or instance, but without authority from him, express or implied. Meadows v. Smith, 34 N.C. 18.
The plaintiff could not recover upon the evidence adduced by him, and there is
No error.