i. salb: upon agentffaiiure of agent to transmuconliability of principal. I. Plaintiffs are engaged in the business of manufacturing wagons and carriages at Cincinnati, Ohio, and defendants reside at Mt. Ayr, in this state, and are merchants engaged in the purchase and sale of goods of that class. An agent ot plaintiffs called on defendants at their place of business, and soiicited them to make a purchase from liis principal, and they accordingly executed and delivered to him an order for the goods in question. This order was sent by the agent to plaintiffs at Cincinnati, and they shipped the goods to defendants by rail. The agent, at the time he received the order, had in his possession plaintiffs’ printed catalogue and price-list, in which was printed what purported to be the warranty which they gave in the sale of their goods. This warranty was shown to defendants; but their claim is that they did not purchase the goods in question under this warranty, but that the agent, at the time the order was given, gave them a written warranty of the quality of the goods, which was much broader in its terms than the printed warranty contained in the catalogue.
The evidence shows, without any conflict, that defendants were unwilling to purchase the goods with the warranty contained in the catalogue, and that the agent proposed to write out and transmit to plaintiffs with the order a warranty of the quality of the goods which would be satisfactory to defendants; and this was assented to, and the agent accordingly did write such warranty in duplicate, and left one copy with defendants, and promised to transmit the other copy, with the order, to plaintiffs; and it was agreed between the agent and defendants that the order and warranty should be subject to plaintiffs’ approval and acceptance, and that if they accepted the order the goods should be sold under said written warranty. *603The agent, however, did not transmit the written instrument, but sent the order alone. It is shown that the agent had power to solicit orders.for goods and transmit them to plaintiffs, but it does not appear that he had authority to make sales of goods. It does not appear that defendants had any knowledge that the agent had not sent the written warranty with the order, until after they had received the goods and disposed of a portion of them.
Plaintiffs objected to all evidence of the written warranty, on the ground that it was not shown that the agent had any authority to bind them by a contract of that character. But this objection was overruled, and the evidence was admitted. This ruling is now assigned as error. The satisfactory answer to the objection is that the agent did not assume to bind plaintiffs by any contract. He did not undertake either to sell the goods or to give any warranty of their quality. He had authority, however, to solicit defendants’ order and transmit it to plaintiffs for their acceptance or rejection, and when they gave him the order, and consented that it and the written warranty might be transmitted to plaintiffs, they thereby offered to purchase the goods with that warranty; but they did not offer or consent to make the purchase on any other terms. When they received the goods, they had every reason to'believe, that the terms of their offer had” been accepted by plaintiffs; and they disposed of a portion of the goods in that belief.
When the agent transmitted the order, he was acting within the scope of his employment, but in withholding the written warranty he perpetrated a fraud. It was his duty to transmit to his principals for their acceptance or rejection the very offer which defendants had made; but, by transmitting the order alone, he led them to believe that defendants’ offer was materially different from what it actually was, and they shipped the goods in that belief.
Defendants’ offer was to purchase the goods upon certain terms, and plaintiffs were led to ship them in the belief that *604the offer was materially different. But they were led into this error by the fraud of their agent, and, as either they or defendants must suffer in consequence of this fraud, the law puts the burden of the loss upon them. 1 Pars. Cont., 73, 74. The relations and • rights of the parties, therefore, are not different from what they would have been if the offer actually made by the defendants had been communicated to and accepted by plaintiffs. They are held to have accepted it as it was actually made. The validity of the written warranty, then, did not depend upon the question of the agent’s power or authority to make it.
s. evidencetractfoKU11’ ciutted -error cted. II. A witness who was present when the order was executed was permitted, against plaintiffs’ objection, to detail the statements inade by plaintiffs’agent during the negotiation with reference to the quality of the carriages manufactured by plaintiffs. This evidence ought not to have been admitted. As the warranty was in writing, all eontemporanéous and prior representations as to the quality of the goods were merged in the written instrument. But in an instruction subsequently given the jury were told, in effect, to disregard this evidence. They were told that if the warranty was reduced to writting there could be no recovery on any parol representations-made prior to the making of the written warranty. With this instruction, we think plaintiffs could not have been prejudiced by the parol evidence.
III. Plaintiffs objected to certain evidence which was offered for the purpose of- establishing a failure of the warranty. The ground of the objection was th-at the evidence had no tendency to prove a failure of the wai-ranty contained in the printed catalogue. But it did have a tendency to prove a failure of the written warranty; and, as the rights of the parties were to be determined with reference to that instrument, the evidence was properly admitted.
*6053 lirSTauc. Sispertiuent to issues. *604IY. Plaintiffs asked the court to give the following instructions, and its refusal to give the same is assigned as error: *605“ (1) The jury are instructed that it is a rule of that a person dealing with an agent, or one claiming to be such, is bound, at his peril, to see that the agent has authority to bind his principal in such transaction, or that the agent is acting within the scope of his apparent authority. (2) An agent authorized to sell goods with a printed warranty, the legal presumption would be that he was authorized to make sales upon the terms and conditions therein contained, and not otherwise. Being authorized to sell, and the terms on which the plaintiffs sold the goods being published in a printed document, there would be no presumption that the agent was empowered to go outside those printed terms in making a contract.” These instructions were asked on the theory' that the contract of warranty, under which defendants were seeking to recover, was made by plaintiffs’ agent. But, as we have seen, this is not correct. The agent did not assume either to sell the property, or to bind plaintiffs by a warranty of its quality. All he undertook to do was to transmit defendants’ offer to purchase to his principal. The instructions, therefore, have no application to the facts of the case.
The foregoing discussion disposes of all questions presented by the record. We see no ground for disturbing the judgment of the district court, and it is accordingly
Affirmed.