reason whatsoever is assigned by him for his action, nor is there anything perceptible in the record to give it support. We are likewise without any assistance in the matter from the respondent, who has also failed to appear on the argument of the appeal. As the plaintiffs were entitled to judgment, a new trial must be ordered. Judgment reversed, and new trial ordered.

(25 Misc. Rep. 380.)

COTTON v. REED.

(Wayne County Court. July 30, 1898.)

SALES-IMPLIED WARRANTY-ARTICLES OF FOOD.

In a sale of a cow to be slaughtered for food, where she was not apparently diseased, and the buyer purchased her, on his own judgment, as a "good, fat cow," there was no implied warranty that she was fit for food.

Appeal from justice court.

Action by William J. Cotton against Harlan L. Reed.

Defendant

had a judgment before a justice of the peace, and plaintiff appeals. Reversed.

Clyde W. Knapp, for appellant.

Del. Stowe, for respondent.

SAWYER, J. No question of fraud upon the part of the plaintiff is raised by defendant in this action, and neither is there any definite claim of an express warranty by plaintiff that the cow in question was suitable for the purpose for which defendant desired to use her. In fact, every claim which defendant might make that the conversation had between the parties at the time of the sale amounted to an express warranty is answered and concluded by defendant's own testimony, in which he states that in making the purchase he relied upon his own judgment of the cow. It is conceded that defendant, a butcher, purchased the cow in question, intending to slaughter her, and retail the meat out to his customers in and about the village of Savannah, in the ordinary course of business, and that this purpose was stated and made known by him to appellant at and before the time of sale. It also appears undisputed from the evidence that at the time of the purchase the animal was fat, and apparently suitable for the purpose for which she was purchased. To use the words of the witness Lockwood, "she was a good, fat cow." It is also undisputed that when the cow was slaughtered she was discovered to be unfit for human food, by reason of a diseased condition of her liver, and that the respondent was forbidden by the health authorities to sell the carcass for food, or, indeed, to bring same within the corporation limits of the village of Savannah, and because of her condition she was disposed of by defendant to a garbage dealer, and was a total It is also conceded that neither appellant nor respondent had at that time any notice or knowledge of the diseased condition of the cow, nor does it appear that there was any way in which her

and 88 New York State Reporter.

condition at that time could have been detected or learned; the disease not having progressed to a stage where it had become apparent by observation of the living animal. Under these circumstances, respondent, in answer to an action brought by appellant for the agreed purchase price of the animal, contends that the law imposes upon the transaction an implied warranty by the vendor that the animal was fit and suitable for food. A careful examination of the authorities convinces me that this claim is not well founded. While it is true that it was understood at the time that the animal was to be thereafter converted into meat, and sold for food, yet, as between these parties, she was the same as any article of merchandise; and, in the absence of fraud, deceit, or express warranty, the maxim of caveat emptor must apply. The exceptions from the application of this maxim are but few, and the policy of our law is to sustain the doctrine whenever possible. It has been held, and with reason, that it does not apply in the case of goods sold upon sample, or in the case of goods sold for food; but the policy of the law is not to enlarge upon or unduly extend these exceptions, and, as I take it, the exception regarding articles sold for food is limited strictly to transactions between the dealer in foods and the customer trading with him in the ordinary course of business; and so strictly is the rule applied that, when the article sold is of such a nature that neither the dealer nor his customer could have determined its condition before its preparation for actual use, then the exception does not prevail, and the rule of caveat emptor must regulate the rights of the parties. Moses v. Mead, 1 Denio, 378; Hyland v. Sherman, 2 E. D. Smith, 235; Goldrich v. Ryan, 3 E. D. Smith, 325; Rinchler v. Jeliffe, 9 Daly, 469; Julian v. Laubenberger, 16 Misc. Rep. 646, 38 N. Y. Supp. 1052; Howard v. Emerson, 110 Mass. 320. A careful examination of all the authorities which have been submitted, and which I have been able to discover upon independent search, reveals but one case which in any way tends to disturb the rule laid down by the cases just above cited. Divine v. McCormick, 50 Barb. 116. Counsel for appellant seeks to distinguish this case from the case at bar, and to a certain extent it is distinguishable; but I am still of the opinion that its holding is directly contrary to the conclusion of the cases to which I have previously referred. I am convinced, however, that it does not correctly state the rule of law, and is in effect overruled by the number, weight, and reasoning of the other authorities.

The judgment herein is also attacked because of alleged errors in fact, but, in view of the conclusion at which I have arrived upon the main question in the case, it becomes unnecessary for me to pass upon the alleged errors. I feel it my duty to say, however, that the affidavits presented upon those questions reveal a state of affairs which, if commonly practiced, must soon bring the courts of justices of the peace and their judgments into deserved disrepute, and a lack of conception of his duty and of the proprieties upon the part of the officer who had charge of the jury which is almost criminal.

Judgment reversed, with costs.

LANGBEIN et al. v. TONGUE.

(Supreme Court, Appellate Term.

1. AUTHORITY OF AGENT EVIDENCE.

November 10, 1898.)

One suing an alleged member of a Lloyd's insurance association for services performed on behalf of the association at the instance of its general manager must prove that such manager had authority to impose on defendant a liability for such services.

2. SAME-POWER OF ATTORNEY.

One suing for services performed for a principal at the instance of an agent having a written power of attorney to contract for such services must either procure the production of such power of attorney or give secondary evidence of its contents, if it is impossible to procure its production.

3. LLOYD'S INSURANCE ASSOCIATIONS-MEMBERS-LIABILITY.

One suing a member of several Lloyd's insurance associations for a certain proportion of his claim for services rendered in connection with policies issued by such associations must show the number of underwriters on each policy, and that defendant was one of the underwriters of each. 4. SAME-EVIDENCE-ADMISSIBILITY.

On a question whether defendant is liable for services rendered a Lloyd's insurance association, the extent of his participation in the management of the business of the association, in connection with the manner in which such business is conducted, is admissible.

Appeal from municipal court, borough of Manhattan, Tenth district. Action by George F. Langbein and others against Walter G. Tongue for services rendered on behalf of certain insurance associations. Judgment for plaintiffs, and defendant appeals. Reversed.

Argued before BEEKMAN, P. J., and GILDERSLEEVE and GIEGERICH, JJ.

P. A. Hargous, for appellant.

Leonard J. Langbein, for respondents.

PER CURIAM. We think the evidence was not sufficient to support a judgment in favor of the plaintiffs. It does not appear that the defendant was a party to any of the actions with respect to which the services were rendered for which this suit was brought. Indeed, there is nothing in the record which properly describes such actions. It is true that a bill of particulars is referred to in the testimony, but it did not form part of the evidence, and is not before us. It was, therefore, the more incumbent upon the plaintiff's to show that the general manager and agent of the Lloyd's companies, of which defendant seems to have been a member, was authorized to impose upon the latter the liability sought to be enforced against him in this action. This was not done. The case, indeed, was very loosely tried, doubtless because the plaintiffs had not anticipated the opposition on purely technical grounds which they encountered on the trial. If, on the new trial which must be had, they find it impossible to procure the production of the original power of attorney, signed by the defendant, they should show that fact by evidence which will legally excuse its nonproduction, and then offer such secondary evidence of its contents as may be available. It should also appear that the defendant was an underwriter in the case of each policy

54 N.Y.S.-10

and 88 New York State Reporter.

with respect to which the plaintiffs performed services for which they now sue, and the number of underwriters in each case should be shown. We cannot, of course, undertake to specify what proofs might properly be offered by plaintiffs in the various exigencies which may arise in the course of the trial; but we may say that, if they find themselves involved in the same difficulties which confronted them in presenting their case on the trial under review, evidence may be resorted to with respect to the organization of the companies in question, the manner in which the business was done, how the bills for expenses of administration were paid, the extent of defendant's participation in the management of such business, and other details tending to show his responsibility for liabilities incurred in the course of the same.

We have considered the contention of the plaintiffs that there was a ratification by the defendant of their employment, but we do not consider that the evidence upon this point is sufficient to sustain the judgment. We should also call attention to the fact that the plaintiffs have sued the defendant for a certain proportion of their general claim for services rendered on behalf of each association, based upon a distribution of liability for the entire amount among a portion only of the underwriters, which they have arbitrarily assumed to make on the sole ground that they gave credit to them only, and not to the whole number. We are unable to find in the evidence any justification for this. For the reasons which we have given the judgment must be reversed.

Judgment reversed, and a new trial ordered, with costs to the appellant to abide the event.

(25 Misc. Rep. 166.)

SOMMER v. CONHAIM et al.

(Supreme Court, Appellate Term. November 10, 1898.)

1. MASTER AND SERVANT-WRONGFUL DISCHARGE-MEASURE OF DAMAGES. Where a servant's contract of employment has not expired at the time of trial, the measure of damages for his wrongful discharge is his wages up to then, less the amount he could have earned by seeking other employment.

2. SAME-INSTRUCTIONS.

Damages for a servant's wrongful discharge being unliquidated, it is error to charge that the servant's recovery is the amount of his wages, less a stated sum allowed for what he probably would have earned during the remainder of the term by seeking other employment.

Appeal from municipal court, borough of Manhattan, Fourth district.

Action by Abraham Sommer against Abraham Conhaim and others. There was a judgment for plaintiff, and defendants appeal. Reversed. Argued before BEEKMAN, P. J., and GILDERSLEEVE and GIEGERICH, JJ.

George Ryall, for appellants.

Charles C. Levenson, for respondent.

BEEKMAN, P. J. This action was brought by the plaintiff for his alleged wrongful discharge by the defendants, in whose employ

he claims he was under a contract of hiring for a year, at a stated compensation of $15 a week. The trial was had below before the justice and a jury; the principal question in issue being whether the employment was for a year, as claimed by the plaintiff, or only from week to week, as the defendants contended. The jury found a verdict in favor of the plaintiff, thus sustaining his version of the contract. We think that there was sufficient evidence in the case, if credited, to support the verdict; and the jury, whose function it was to determine the question of credibility, having decided it in favor of the plaintiff, their verdict upon the facts should not be disturbed.

The only question, then, which we consider is open for our determination, is one of law, which was raised by an exception to the judge's charge. The facts, as we must deem them to have been established by the determination of the jury, show that the plaintiff was employed for a yearly service beginning February 26, 1898; that he entered upon the performance of such service, and was wrongfully discharged on April 30, 1898. This action was brought on the 17th day of June, 1898, and the trial was had on the 13th day of July, 1898. The court instructed the jury that, if they found that there was a yearly hiring, they must give the plaintiff a verdict for $500 damages. The amount thus specified seems to have been based upon the plaintiff's bill of particulars, in which he estimated his damage at $15 a week for the contract period which was unexpired at the time of his discharge, amounting to the sum of $645, upon which he allowed to the defendants a deduction of $145, stated to be for "probable employment to the end of the contract term," leaving a balance of $500, for which suit was brought. It is quite evident that the deduction thus made was resorted to rather for the purpose of enabling the plaintiff to sue in the municipal court, whose jurisdiction is measured by the exact amount sued for, than upon any reasonable estimate of what the facts of the case properly required. There was no agreement or assent on the part of the counsel for the defendants to the amount of damages which the court thus undertook to liquidate. The damages were unliquidated, and the court should have left it to the jury, under proper instructions, to determine how much the plaintiff was entitled to. Instead of so doing, he seems to have taken it entirely from their consideration. The measure of damage in such a case as this, where the suit is brought and the trial is had before the expiration of the time fixed in the contract for the duration of the service, seems to be the actual damage which the plaintiff is able to show that he has suffered down to the time of the trial. Everson v. Powers, 89 N. Y. 527; Bassett v. French, 10 Misc. Rep. 672, 31 N. Y. Supp. 667. The latter case, in which Mr. Justice Pryor delivered the opinion, is particularly in point. It is well settled that if at that time the period of the contract has expired, although the action was actually commenced before, the measure of damage then would be the stipulated amount of wages for the entire period succeeding the breach, subject to such reduction as it might appear from the evidence the defendants were entitled to, either on account of money actually earned by the plaintiff during the period in another service, or which he would have earned had he sought