#### Sampson Lane *v*. William Dudley.

Craven.

A. sells Ti’s horse to C, and warrants his soundness. The sale is made without the privity or knowledge of B, but B. accepts the purchase money, at which time he is ignorant of the warranty which A. has made. B. is answerable to C, upon this warranty ; for

He has accepted the purchase money, and ratified the sale ; and although he was ignorant of the warranty, he shall not be excused, for the authority to warrant is included in the general authority to sell; and he ought to have enquired into the terms of the sale, and ascertained the extent of the liability imposed on him by his agent, before he consented to receive the money,

if a servant borrow money in his master’s name, although it be done without the master’s consent, and the money come to the master’s Use, and by his master’s assent, the master shall be charged with it.

This was an action on the case for a breach of warranty. William Pritchard exchanged with the Plaintiff a mare of the Defendant’s for a horse of the Plaintiff’s. He was advised or directed to make this exchange by Charles Saunders, in the manner set forth in the deposition of Saunders hereafter mentioned. On the exchange, Pritchard warranted the mare to be sound. Saunders had neither instructed nor forbidden Pritchard to make such a warranty, nor did he know of its being made. Dudley had given no authority whatever, either to Saunders or Pritchard, to dispose of his mare, or to make any warranty of her *soundness;*but he had offered a few days before, to exchange the same mare with Saunders for a horse belonging to Saunders. After the exchange was made with the Plaintiff,, the horse was taken by Pritchard to Dudley, who was then made acquainted with the exchange, but was not informed of the warranty, He was also told by Saunders that he might either have this horse thus procured from the Plaintiff, or the horse of Saunders, for which he had before proposed to exchange the mare. He took the horse which had been procured from the, Plaintiff.

*120Saunders, in his deposition, stated that in the month of January, 1804, the Plaintiff, being at his house, asked him if he had a mare to exchange for a horse ? Saunders answered in the negative, but informed him that Dudley had one which he would probably exchange, as lie had offered to exchange a mare for a horse belonging to Saunders. A day or two after this conversation, Saunders went to Newbern, and Pritchard borrowed Dudley’s mare. He saw Pritchard, who informed him that propositions had passed between him and Lane, for exchanging the mare for Lane’s horse, and asked Saunders whether he should trade, and upon what terms. Saunders advised him to make an exchange, saying, if Dudley should be dissatisfied, he would keep Lane’s liorse, and let Dudley have his. At this time, Saunders hád not informed Dudley of Lane’s proposition, nor of his remark to Lane, that he, Dudley, would probably be willing to make an exchange. He was influenced entirely by the consideration, that if Dudley should disapprove of the bargain, he, Saunders, could keep Lane’s horse, and let Dudley have his. He did not advise nor consent that Pritchard .should warrant the mare’s soundness : he was not present at' the bargain, and Pritchard never informed him that he had warranted the marc’s soundness, nor had he any reason to suspect that such warranty would be made or required. Afterwards in the same day he saw Dudley, and informed him that he had given such authority to Pritchard, and told him that . if he were displeased, he, Saunders, would keep Lane’s horse, and let him, Dudley, have his.

The question in the case was, Whether the warranty of Pritchard bound Dudley ?

Taxxok, Chief-Justice,

delivered the opinion of the Court:

The distinction between a general and special agent is founded in such obvious justice, and has been so often. *121recognised as Law, that the spirit of it ought to be observed, even where the parties themselves have hot stated it in terms. A general agent binds the principal by his acts $ but an agent appointed for a particular purpose, and acting uhdér a circumscribed power, cannot bind the principal by an act in which he exceeds his authority. Thus, if a person keeping livery stables and having a horse to sell, empower his servant to sell but not to wan'itnt, still the master would be bound by the servant’s warranty, because lie acted within the scope of his authority, and the particular restraint upon the servant ought not to affect the public. But if the owner of a horse were to send a stranger out with him, with a power- to sell, but with express direction not to warrant the horse, and the stranger disobeyed this direction, tho purchaser would have a remedy against him on the warranty, but not against the owner; because he invested the servant with a circumscribed authority, beyond the scope of which he had acted» According to this rule, it is clear that Dudley would not have been liable on Pritchard’s warranty, if he had directed him to sell or exchange the horse, but not to warrant him. If, on the contrary, he had been silent with respect to the warranty, and had trusted that to Pritchard’s discretion, it is reasonable that he should be bound by it j since it was within the scope of an authority to sell. Does not Dudley’s receiving the terse procured in exchange, and thereby assenting to the contract, place the case on the same ground as if he had given Pritchard a general power to sell in express terms^and had said nothing of a warranty ? “If a servant borrow money in his master’s name, the master shall not be charged with it unless it come to his use, and that by his assent. And the same' Law is, if a servant make a contract in his master’s name, tho contract shall not bind his master, unless it were by his master’s commandment, or that it come to the master’s use by his assent. But if a man semi his *122servant to a fair or market, to buy for him certain tilings, though he command him not to buy them of no man in certain, and the servant doth according, the master shall foe charged ; but if tiie servant in that case buy them in his own name, not speaking of his master, the master shall not be charged, unless the things bought come to his *use.”*— (Doctor *and Student*236.) Dudley has then ratified the contract as well as the warranty made by Pritchard, by receiving the horse ; and although he did *not*know of the warranty, his own agent concealed it from him, very improperly, it is true, as between themselves, but such concealment ought not to affect, the Plaintiff, who might have been induced by the warranty, to part with his property. Dudley should have enquired into the terms of the exchange, and ascertained fully the extent of the liability imposed on him by his agent, before he consented to receive the horse. Let judgment be entered for the Plaintiff. '