That the firm of which the plaintiff was a member was induced to purchase the goods in question in consequence of representations as to their character and quality made by the defendant’s agent is not denied, and that there was a breach of the warranty thus made is a fact as to which there is but little, if any, controversy. It follows, therefore, that the particular cause of action set out in the plaintiff’s complaint was established, provided the plaintiff’s assign-*220M'S had any right to rely upon an express warranty made by theao-ent of the defendant.
It is a well-settled rule of law that an agent authorized to sell property, in the absence of any express limitations of his powers, is authorized to do any act or to make any declaration in regard to the property which may be necessary to effect the sale thereof and which is usually incidental thereto; and that declarations thus made by an agent while negotiating for the sale of property, if within the scope of his authority, are binding upon his principal, although the bargain is not concluded until a subsequent day. (Ahern v. Goodspeed, 72 N. Y. 108 ; Wait v. Borne, 123 id. 592, 601; Cafre v. Lockwood, 22 App. Div. 11.)
There is no proof in this case that the defendant’s agent had any express authority from his principal to warrant the goods purchased by the plaintiff’s firm; but it does appear from certain letters of' his, which were written to and put in evidence by the defendant,, that he had always assumed to guarantee the goods sold by him, and. that such was the universal custom of dealers in the particular class, of goods known as “ plumbers’ supplies.” We think, therefore, that, upon this state of facts, the jury might have found that the* right of Eddy to warrant the tanks sold by him to Barr, Reynolds & Co. was incidental to the contract of sale, and, therefore, binding upon his principal. But the defendant, in order to meet any evidence of such authority, attempted to show that, in making the-representations he did as regards the character and quality of theLipp tanks, Eddy acted in violation of the express instructions-given him by the defendant; whereupon the trial court of its own motion eliminated from the case all evidence of an express warranty and thereafter submitted it to the jury upon the theory that it was-one in which a warranty might be implied from the fact that the-articles sold were manufactured articles and designed for a particular purpose.
If the evidence in the case was sufficient to establish an implied warranty within the rule thus invoked by the trial court, the case-was doubtless properly submitted upon that theory, although the-plaintiff had declared upon an express and not an implied warranty. (Hoe v. Sanborn, 21 N. Y. 552; Bierman v. City Mills Co., 151 id. 182, 188.)
*221We think, however, that the evidence was not such as would warrant a recovery upon the theory upon which the case was submitted to the jury.
The property, which was the subject-matter of the contract between the plaintiff’s firm and the defendant, it may be assumed for the purposes of this review, was not in existence at the time the contract was entered into. At all events, it consisted of manufactured articles which were designed for a particular purpose, and had they been manufactured by the defendant the law would probably permit a guaranty by implication that they were free from any latent defect arising out of the process of manufacture, and that they would answer the purpose for which they were especially designed. (Hoe v. Sanborn, supra ; Carleton v. Lombard, Ayres & Co., 149 N. Y. 137; Bierman v. City Mills Co., supra.)
The principle last asserted forms an exception to the general rule of ecmeat emptor, and it is founded upon the presumption that the manufacturer of an article, being familiar with the process of its manufacture, knows, or ought to know, what latent defects, if any, exist therein; and this presumption, it has been truly said, “ is justified in part by the fact that the manufacturer or maker, by his occupation, holds himself out as competent to make articles reasonably adapted to the purposes for which such or similar, articles are designed.” (Kellogg Bridge Co. v. Hamilton, 110 U. S. 108.)
The reason for the rule above referred to obviously excludes the idea that it has any application to property sold which was not manufactured by the seller; for in such a case it would be unreasonable to assume that the seller had any other or better opportunity to know of the existence of a latent defect than had the purchaser. The case under consideration furnishes perhaps as apt an illustration of the distinction we are seeking to draw as can well be found. The defendant was not a manufacturer of, but a dealer in, a particular class of goods. Its place of business was in the city of New Y ork. In order to comply with the requirements of a customer an order for the articles desired by him was sent to the manufacturer thereof in the distant city of Cincinnati, and some time thereafter the articles thus ordered were sent directly by the manufacturer to the defendant’s customer at Rochester.
Thus it will be seen that the defendant not only had nothing *222whatever to do with the manufacture of the articles sold, hut that it never even saw them. In these circumstances, with what propriety can it be assumed that the defendant was so familiar with the process of manufacture of these articles as to be aware of the existence of some latent defect therein, or upon what principle of justice can it be held that, because the articles were designed for a particular purpose, they were sold under an implied warranty that they were adapted to that purpose ? We find no authority for such a proposition, but upon the contrary the cases are numerous which hold that to bring a party within the rule adopted by the trial court,, he must be the manufacturer as well as the seller of the property sold. (Hoe v. Sanborn, 21 N. Y. 552 ; Bartlett v. Hoppock, 34 id. 118; Dounce v. Dow, 64 id. 411; White v. Miller, 71 id. 118 Wait v. Borne, 128 id. 592, 604; Carleton v. Lombard, Ayres & Co., 149 id. 137; Bierman v. City Mills Co., 151 id. 482, 488; Kellogg Bridge Co. v. Hamilton, 110 U. S. 108; Cafre v. Lockwood, 22 App. Div. 11.)
If we are correct in the views thus far expressed it will be unnecessary as well as unprofitable to consider the subtle refinements of the common law to which the learned counsel for the respondent has resorted in order to sustain his contention that the question of implied warranty may, in the circumstances of this case, be one of fact and not of law; for if the case was tried and submitted to the jury upon an erroneous theory a new trial ought to be had in order that the parties may litigate the action upon a true theory and the one tendered by the complaint, viz., that the defendant’s liability arises out of an expressed and not an implied warranty.
All concurred.
Order reversed and a new trial granted, with costs to appellant h> abide the event.