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Second Department, April, 1909.

[Vol. 132.

GUS LUCKES, Appellant, v. ARCHIBALD K. MESEROLE, Respondent.

Second Department, April 23, 1909.

Principal and agent — personal liability of agent on unauthorized warranty sale — acceptance consideration for warranty.

The selling agent of a disclosed principal is personally liable for the breach of an unauthorized warranty.

Where a selling agent warrants the quality of mortar after delivery but before acceptance by the buyer, there is a consideration for the warranty. This, because the sale is not complete until acceptance.

APPEAL by the plaintiff, Gus Luckes, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 20th day of March, 1908, upon the dismissal of the complaint by direction of the court at the close of the plaintiff's case on a trial at the Kings County Trial Term. William L. Stone [Albert I. Sire with him on the brief], for the appellant.

J. Power Donellan, for the respondent.

RICH, J.:

The plaintiff is a contractor, and while engaged in the erection of some buildings purchased of one William H. Meserole, for whom the defendant was acting as sales agent, a quantity of patent mortar for use upon such buildings. He testified that in answer to the inquiry of the defendant as to what kind he wanted he answered, "any kind as long as it is good." Defendant then informed him that he could furnish two kinds, Rock wall or Rockland Rockport Lime Company, but later told him he could not furnish the Rock wall but could furnish the other, which was just as good, twentyfive cents cheaper, to which plaintiff responded, "all right, as long as it is good stuff and you will guarantee the stuff, I will take it," to which respondent replied, "Sure, everything I give you is good." Upon inspecting the mortar upon delivery its color led the plaintiff to think that there was something wrong about it and that it might be of an unfit quality for his purpose and so informed defendant, to which he replied, "Never mind, that stuff is good, it comes from a very good firm. That stuff was guaranteed to us and we

* * *

App. Div.]

Second Department, April, 1909.

guarantee it to you." Plaintiff's foreman, testifying to this conversation, says the defendant said, "You go ahead and use it, the firm is responsible for this stuff and we are responsible to you." Relying upon this warranty the plaintiff accepted and used the mortar which proved to be worthless and had to be removed from the walls and replaced with other mortar, and the plaintiff seeks to recover the moneys expended in making the change in this action.

upon

Plaintiff first asserted his claim against William II. Meserole, who repudiated the act of the defendant in making the warranty, and the complaint was dismissed upon the ground of a failure to establish express authority in the sales agent to make such a warranty or that such warranty was customary in the trade. He then brought this action against the agent, alleging, first, the warranty and that it was made by defendant in his individual capacity, and that the defendant had no authority to make the warranty in behalf of his principal. The learned trial justice dismissed the complaint the ground that then plaintiff was dealing with the agent of a disclosed principal; that the repudiation by the principal of the unauthorized warranty of his agent was immaterial, and that the plaintiff's cause of action was based upon a warranty made after the sale and delivery of the mortar, for which no consideration was proven, and, hence, there was no binding warranty as against the defendant. In these conclusions I think he was in error. Taylor v. Nostrand (134 N. Y. 108) is a direct authority sustaining the plaintiff's contention of his right to maintain this action. Delivery of the mortar was not the equivalent of acceptance, and the evidence establishes that there was no acceptance until after the guaranty sued upon. In James v. Libby, McNeil & Libby (103 App. Div. 256), a case very similar to the one at bar, in which the objection was made that there was no consideration for the agreement, which was made after the goods purchased had arrived at the dock in New York, it was held that the later agreement rested upon a sufficient consideration, and was enforcible.

The judgment must be reversed and a new trial granted, costs to abide the event.

WOODWARD, JENKS, GAYNOR and BURR, JJ., concurred.

Judgment reversed and new trial granted, costs to abide the event.

Second Department, April, 1909.

[Vol. 132.

CARL CHRISTMAN, Appellant, v. ANDREW C. ROESCH, Individually and as Executor, etc., of MARIA FOEHNER, Deceased, Respondent.

Second Department, April 23, 1909.

Will construed - gift to executors eo nomine - when executor does not take residuary estate-partial intestacy.

Before a gift to executors eo nomine can be held to vest in them individually, the intention that it shall so vest must be plainly manifest.

Where a will made a specific legacy of $400 to the executor and provided that he should have full power to sell the testator's lands "at his best advantage and pay the above requests (sic). All the rest and residue shall be used at the best of advantage of my executor who can give such papers and instruments which are required in such case," there was no intention to leave the residuary estate to the executor individually.

Such construction must be given, although it will result in partial intestacy which is not favored.

APPEAL by the plaintiff, Carl Christman, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 14th day of July, 1908, upon the decision of the court, rendered after a trial at the Kings County Special Term, dismissing the complaint on the merits in an action for the construction of a will.

The testatrix made several bequests of specific amounts, aggregating $2,400, including one of $400 to Andrew C. Roesch, whom she later named as executor. Immediately following those bequests she used this language, viz.: "I empower my executor hereinafter named who shall have full power and consent and without security or bonds to sell and convey the house No. 49 Scholes Street, at his best advantage and pay the above requests all the rest and residue shall be used at the best of advantage of my executor who can give such papers and instruments which are required in such case." The estate of the testatrix consisted of said house, and of personal property, in addition to household goods and jewelry, amounting in value to about $168. She was survived by the plaintiff, her brother. The will was drawn by a relative of the executor, who received his instructions from the testatrix in German.

App. Div.]

Second Department, April, 1909.

Louis Frankel [Julian B. Beaty and Job E. Hedges with him on the brief], for the appellant.

Louis J. Halbert, Jr., for the respondent.

MILLER, J.:

Prior to the statute (11 Geo. IV & 1 Will. IV, chap. 40) the undisposed of personal estate of the testator vested in the executor beneficially; but any expression in the will indicating a contrary intention, for example, one giving the executor a legacy, was seized hold of by the courts of equity to prevent that result. (Farrington v. Knightly, 1 P. Wms. 544; Southcot v. Watson, 3 Atk. 226; Andrew v. Clark, 2 Ves. Sr. 162; Bennet v. Batchelor, 1 Ves. Jr. 63.) In Cradock v. Owen (2 S. & G. 241), decided in 1854, a testatrix gave to two devisees, who were also her executors, all her real and personal estate in trust for sale. She then directed that her executors should each retain out of the proceeds of the sale of the real and personal estate the sum of fifty pounds for his trouble. She then made certain bequests to legatees by name, but did not otherwise dispose of her residuary estate. It was held that the gift of the fifty pounds to the executors excluded them from any beneficial interest in the estate, and there being no next of kin, that the personal estate went to the crown. In Saltmarsh v. Barrett (29 Beav. 474) the testator gave legacies of nineteen guineas to each of his executors and then bequeathed the whole of his estate to them absolutely. He then charged his estate with certain legacies and directed the executors to deduct their costs, charges and expenses from any moneys of his estate coming to their hands. The master of the rolls held that the executors took as trustees for the next of kin, the principal reasons for that construction being the gift of the pecuniary legacy and the direction for the payment of the executors' costs and expenses. Upon appeal the court was divided and the appeal was dismissed, without costs. (3 De G., F. & J. 279.) It will be noticed that, in that case, the testator in terms bequeathed the whole estate absolutely to the executors and then confirmed the absolute nature of the bequest by charging upon it certain legacies.

The law in this State is that "before a gift to executors eo nomine can be held to vest in them individually, the intention that it should so vest must be plainly manifested." (Forster v. Winfield, 142

Second Department, April, 1909.

[Vol. 132. N. Y. 327.) The question is, then, whether the intention of the testatrix to give her residuary estate to her executor individually has been plainly manifested. I do not think it has. The meaning of the words "all the rest and residue shall be used at the best of advantage of my executor," standing alone, would not seem to me to be free from doubt; but, when coupled with the direction to the executor to sell the real estate "at his best advantage," the doubt is greatly increased. Plainly, by the latter expression, she meant the advantage of her estate, not the personal advantage or benefit of the executor; and I see no reason to think that the two expressions were used in different senses, especially when the provision that the residue shall be used at the best advantage of the executor is immediately followed, without separation, by the provision that he can give such papers and instruments as are required. It seems to me that there is much reason to think that the testatrix had in mind only the sale of the real estate to the best advantage of the estate and the payment of the pecuniary legacies from the proceeds of the sale. It is quite probable that she thought that would exhaust the estate. Certainly, if the executor was to have the residuary estate, there could be no occasion for him to give "papers and instruments" in respect thereto. Manifestly, the papers and instruments which the testatrix had in mind were those which might be required on the sale of the real property, and the position of the expression in reference to giving papers and instruments shows, or tends to show, that, by the paragraph quoted in the above statement of facts, the testatrix was attempting only to provide for the sale of the real estate to the best advantage of her estate and the payment of the pecuniary legacies therefrom. Moreover, the gift of the specific sum of $400 to the person by name who was afterward named as executor, in connection with the fact that she referred to him only as executor in the paragraph under consideration, increases the doubt, if indeed it does not altogether remove it and show that the legacy of $400 was the extent of the beneficial interest which she intended to give him. If he was to be the residuary legatee, there was no reason to give him a general legacy. At any rate, the case is too doubtful to allow the executor to take the residue.

Of course, in this case we have to assume that the will before us is the will of the testatrix, that the draftsman drew it according to

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