L. & W. T. Beebee vs. Robert, 12 Wend. 413

By the Court, Sutherland, J. The suit was properly brought in the name of the present plaintiffs. Woolley acted as their factor or agent merely, in the purchase of the cotton $ he had no interest in the transaction beyond his commissions: he is not responsible to the plaintiffs for the defect in the quality of the cotton: he has suffered no injury, and no action could be sustained in his name against the defendant for the breach r . . ,. , ° , ot the implied warranty — there was no express contract or agreement with him.

If Woolley, the factor, had failed to pay for the cotton, Robert could have recovered its value from the plaintiffs. When goods are brought by a broker or other agent, and he does not disclose his principal at the time, the principal, when discovered, is liable on the contracts which his agent has made for him. 2 Livermore on Agency, 200. Waring v. Faverick, 1 Campb. 85. Kymer v. Suwercropp, id. 109. 4 Taunt. 576, n. a. Pentz v. Stanton, 10 Wendell, 271.

Where the principal is disclosed at the time of the purchase, it then becomes a question of fact, to be determined from all the circumstances in the case, whether the vender relied exclusively upon the credit of the agent or not.

If he did, he cannot afterwards resort to the principal. 2 Liver. 200, 201. 15 East, 62. 4 Taunt. 574, If the plaintiffs might have been made responsible to the defendant for the purchase money upon this contract, it would seem to follow that there is sufficient privity of contract between them, to enable the plaintiffs to maintain this action against him for the alleged violation of his part of the agreement. The general rule is, that the action should be brought in the name of the party whose legal interest has been affected, against the party who committed the injury. 1 Chitty’s Pl. 1.

Hammond on Parties to Action, 3. 1 Bos. & Pull. 101, n. c. 3 id. 149, and note. Dawes v. Peck, 8 T. R. 330. 10 Johns. R. 387. Yates v. Foote, 12 id. 1. In Spencer v. Field, 10 Wendell, 87, and Sailly v. Cleaveland & Hutton, id. 156, the question as to the proper parties to an action was discussed at length, and most of the authorities were there referred to. Those cases clearly show that this action is properly brought in the names of the present plaintiffs.

If the cotton was, subsequently to the original purchase by the plaintiffs sold by them to the Jefferson Cotton Mills, which is not satisfactorily shown, it would in no respect affect their right to maintain 'this action. There is no evidence whatever as to the terms and condition of the sale, whether it was with or without warranty, whether at the original, or at a reduced price in consequence of its inferior quality. If the cotton was actually sold to the company, it is to be presumed to havé been sold either with warranty or at its fair value.

But the evidence upon that point is altogether too vague to affect in any manner the plaintiffs’ right to maintain this action. Was this a sale by sample 1 If it was, it is not disputed that it amounted in judgment of law to a warranty, on the part of the vendor, that-the bulk of the cotton corresponded in quality with the samples exhibited. The law upon this point is too well settled to be questioned, 4 Cowen, 440; 6 id. 354; 9 Wendell’s R. 20, and the authorities referred to in those cases.

Woolley, the broker who made the purchase for the plaintiffs, states that he called at the defendant’s counting room and examined his samples, told him that he had an order from a manufacturer, and wanted good cotton. The samples were in the defendant’s counting room Witness examined them and made a bargain for 25 bales, to be selected from two separate lots, on condition that, upon inspection of the cotton and on drawing fresh samples, they, the fresh samples, should be as good as the samples exhibited to him.

The witness and the defendant accordingly went and drew samples from the two lots, and the witness then selected 25 bales from the whole. The defendant and the witness each drew samples, and the witness made the selection and marked the bags. He selected the 25 bales in question, by comparing the samples which were then drawn with the samples shown to him by the defendant at his counting room. The samples were drawn with a common cotton sampler, about a foot long; they were taken in the usual way, from the ends of the bales.

The drawing of these second samples was merely for the purpose of testing the correctness of those first exhibited. Woolley, the factor, had previously agreed to purchase 25v bales, if the second samples should prove as good as the first. Subject to that consideration alone, the contract was complete before the second samples were drawn, and the only object in drawing them was to satisfy the agent that the first samples were fairly drawn. It falls directly within the case of Gallagher & Mason v. Waring, 9 Wendell, 20.

It is entirely immaterial whether the samples were drawn by the plaintiffs’ broker or by the defendant himself; they were both present, and it would seem, each drew nearly an equal quantity. In Gallagher v.

Waring, above referred to, the sale was made by the defendants’ broker, the defendants not being present; and the question arose whether he was not the agent of the plaintiffs in drawing the second samples, they having been drawn at their request, and not having been seen by the defendants ; and the argument was, that the sale was made upon the faith of the second samples, and not of the first, which had been furnished by the defendants; and that the defendants could not be held responsible in relation to them, as they had never seen or furnished them.

But it was satisfactorily answered, that, as both samples were alike in quality, the only effect of drawing the second was to show the accuracy of the first, and that it was in fact a sale by the first samples. But in this case, if the sale had been made on the strength of the second samples, as they were seen and exhibited by the defendant himself, it would afford no ground of objection to the plaintiffs’ recovery. But in this, as in the case in 9 Wendell, both set of samples were of the same quality. In The Oneida Manufacturing Society v.

Lawrence, 4 Cowen, 444, the chief justice remarked, that every sale of packed cotton must be considered in the nature of a sale by sample. It seems to have been contended, in that case that it was not a sale by sample, because the plaintiffs’ agent saw the bags, in which the cotton was packed, before he made the purchase ; and that it therefore fell within the general rule, that where the vendee has an opportunity of 'examining the corn» modify, the vendor is not responsible for any latent defect, without fraud or express warranty.

But from the very nature of this article, and the form in which it is sent to market, no effectual examination can be made without breaking up the bales. This is never done; the trouble and expense of re-packing effectually prevents it. Although the plaintiffs’ agent in this case saw the bags, and drew samples from thems he had no opportunity of examining the bulk of the commodity ; he was compelled still to rely upon the samples. It was therefore a sale by sample, and the evidence clearly shows that the bulk of the cotton was of very inferior quality to the samples exhibited.

The jury have found that the statement fof damages, which was made out by the plaintiffs and sent to the defendant, was made and sent with a view to a compromise; and the judge correctly decided that if it was so made, the plaintiffs were not bound by it, but.might recover all the damage which they could show they had sustained. The motion for a new trial must therefore be denied, on the bill of exceptions.

As to the application for a new trial, on the ground of surprise ; The allegations cf the defendant are fully answered and rebutted by the affidavits on the part of the plaintiffs, one of whom states that in April, 1831, about two months before the trial, he told the defendant that they had sustained very serious injury from the bad quality of the cotton; and that if driven to a trial to get their damages, they should get all they could, and that the defendant might rely upon it, they should make out a bad case against him.

But independently of this direct information, the circumstances of the case by no means authorized the defendant to believe that the only damage claimed by the plaintiffs was the price of the cotton actually rotten and good for nothing. The plaintiffs were willing to take that, if promptly allowed, to avoid the delay, vexation and expense of a law suit; but if driven to an action, the defendant ought to have known that they would prove all the damage they could ; and that if 1500 lbs. of the cotton was rotten and good for nothing, the quality of the rest must have been more or less affected by it.

This ground of the application for a new trial is not sustained. New trial denied.