Snyder that the shellac varnish would be used by them upon mouldings, and said Frank Snyder stated that the shellac varnish/ of the defendants was suitable for that purpose.

The referee further finds that Snyder was expressly authorized by the defendants to warrant the article of shellac varnish sold by them to be made from fine gum shellac and wood alcohol and that it was the usage of the business of the defendants for a selling agent to warrant the quality of the article sold.

This

On the 26th of April, 1886, the plaintiffs ordered of defendants one barrel of pure white shellac varnish, "same as you sent us October 4, 1885," reference being made to the sample cask delivered at that date, and thereupon a barrel of such varnish was delivered by defendants to plaintiffs on the 8th of May, 1886. barrel and the sample cask were used in the business of plaintiffs and applied to mouldings, and corresponded to the warranties in every respect, and were made from pure shellac gum and pure wood alcohol.

On the 9th of June, 1886, the plaintiffs, relying, as the referee finds, on said warranties, ordered of the defendants a second barrel "white shellac same as sent on May 8, '86," reference being made to the barrel delivered at that date, and thereupon on the 17th of June, 1886, the defendants delivered to plaintiffs a barrel of shellac varnish purporting to be the same. This is the barrel

of varnish in controversy.

The referee finds that about one-half of it was properly applied and used in the business of plaintiffs upon 20,000 feet of mouldings; that it did not contain an article made from pure gum shellac and pure wood alcohol, and contained an article which did not dry or harden, and was not suitable for application upon mouldings; and which became soft, sticky and gummy after application upon said mouldings; that the mouldings would have been worth ten cents a foot if the article applied thereupon had been made from pure gum shellac and pure wood alcohol and had been suitable for the purpose of finishing mouldings; that 14,000 feet of the 20,000 were of the value of five cents per foot; that the article in the barrel in question had no visible defect, and appeared in all respects similar to and identical in quality with the previous barrel, and that no defect could have been discovered from an examination of the same, or until some time after its application to the mouldings; that by reason of the failure of the article to correspond with the warranties the plaintiffs were damaged in the sum of $700, for which judgment was ordered.

It is claimed on the part of the defendants, first, that the sale of the goods in question was without warranty, and secondly, that the findings setting forth defects are against the weight of evi

dence.

The main argument as to the first proposition is based on the circumstance that at the time of that particular sale no representation was made by the defendants and that what occurred at the first sa le did not apply to the last. There was conflicting evidence as to what occured on the occasion of the first or sample N. Y. STATE REP., VOL. XXXII. 102

order, and the finding of the referee on that subject must be assumed to be correct. That being so, it is very clear that the parties contemplated future orders and that whatever was then said as to the quality or adaptibility of the goods was intended and understood to apply to subsequent sales. So that when the plaintiffs on the second occasion ordered goods the same as the first, and upon the last occasion ordered goods the same as the second, there was no room for defendants to doubt as to what was ordered, and when they filled the order they must be presumed to have done so under the arrangement as first made and as a part of that transaction, and whatever representations were then made must be deemed to apply. Wait v. Boone, 23 N. Y. State Rep., 341. They knew the first was a sample order.

There is no doubt about the authority of the agent to make the warranty. An agent authorized to sell property, in the absence of any express limitation of his powers, is authorized to do any act or to make any declaration in regard to the property found necessary to make a sale and usually incidental thereto. Ahern

v. Goodspeed, 72 N. Y., 108; Mayer v. Dean, 115 id., 560; 26 N. Y. State Rep., 375.

The warranty, we think, was sufficiently established. Was there a breach shown? A large amount of evidence on this subject was presented by each party. On the part of plaintiffs it was shown that after the application of the varnish to mouldings, unsatisfactory results were developed. The vital question was whether these results were attributable to the poor quality of shellac. In determining this question, the reliability of the witnesses upon either side was to a certain extent involved. Inferences were to be drawn and this was peculiarly within the province of the court below. It is argued that it was incumbent on the plaintiffs to show that all of the mouldings upon which this varnish was applied showed defective results. The finding of the referee is that as to 6000 feet such results were not shown. It is not found that they were not defective but that they were not shown to be so. There is evidence that the 6000 feet had been sold by plaintiffs, and claims for damages in some instances made, but no proof sufficient to satisfy the referee of the condition or value, in fact, of such mouldings. No damages were allowed on that amount.

The apparent inability of the plaintiffs to show the condition of this amount of the mouldings should not bar their claim. If there was any ground to believe that such part was not defective, though treated the same as the rest, it might be troublesome to plaintiffs' theory. This, however, is not shown or found.

The finding of the referee on this subject should not be disturbed.

No point is made by the defendants as to any ruling upon evidence. As to damages, they claim that they are excessive, and that the measure is erroneous. In support of this, the only statement in defendants' points is that it sufficiently appears from the plaintiffs' verified bill of particulars, which was offered in evidence. The record shows that after this bill was offered and after the plaintiffs rested their case they were allowed, upon terms

which were complied with, to amend the complaint to conform to the proof. This being so, the bill of particulars, served a long time before, ceased to limit the recovery. The question then is, whether the proof sustains the findings as to damages.

It was shown by the plaintiffs that the mouldings would have been worth ten cents per foot if the article applied thereon had been as warranted, but were in fact worth only five cents per foot. This evidence was not objected to as not furnishing the proper measure of damages, but objection was made on other grounds, which were properly overruled.

It seems to have been assumed that that was the proper measure. Parks v. Morris Ax & Tool Co., 54 N. Y., 586. No evidence was given by the defendants to contradict this valuation and no request was made for a finding on that subject. It was shown by plaintiffs that the difference of five cents would be the expense of taking off the old finish and putting on the new, so that this difference represents the actual damages. The defendants knew the purpose for which the varnish was to be applied and represented it suitable, and it is found upon sufficient evidence that the defect could not have been discovered before it was applied.

As the case stands, we think the finding as to damages must be sustained.

Judgment affirmed, with costs.

HARDIN, P. J., and MARTIN, J., concur.

SAMUEL H. WEEKS, Resp't, v. WILLIAMS MARTIN, App'lt. (Supreme Court, General Term, Fourth Department, Filed July 1, 1890.) 1. DEED-DESCRIPTION.

A deed of land described the premises as "Subdivision of lot No. 4 of Div. No. 16 in Great lot No. 35 of Hardenburgh patent, said lot No. 4 formerly containing about 1,900 acres," and excepted therefrom certain portions of the land which had been sold therefrom. There were no subdivisions of that lot except as made by the sales. Held, that the intent was clear to convey the balance of whatever the grantor owned in that lot, and that it was therefore not void for indefiniteness, but should be construed as if the word "of” after "subdivision" were omitted.

2. SAME-LOCATION OF BOUNDARY-STATUTE OF FRAUDS.

After the execution of a contract for sale of land to one S. he and his grantor went on the premises and marked out a line which did not follow the course given in the contract, as S. had claimed the contract did not give him all the land he wanted. The deed subsequently given followed the description in the contract. Held, that the acts of the parties to the contract did not amount to a location of a disputed boundary, but a par 1 agreement to sell further land and designating the line, which was void by the statute of frauds.

3. SAME-ADVERSE POSSESSION.

The mere occasional cutting of timber on land which is not enclosed, improved or cultivated, by the holder of a contract for land which does not cover the premises in question, do s not give him such possession as will furnish a basis for adverse possession.

4. REPLEVIN.

A person who holds the legal title to unimproved or unenclosed land has constructive possession and may maintain replevin for logs wrongfully cut thereon.

APPEAL from a judgment entered in Delaware county on the 23d October, 1885, upon a verdict directed by the court at the Delaware circuit October, 1885, in favor of the plaintiff for the possession of 40,000 feet of logs of the value of $240 and for $22.40 damages for detention.

W. H. Johnson, for app'lt; W. F. White, for resp't.

MERWIN, J.-The litigation in this case is over the ownership of the real estate upon which the logs in controversy were cut. Both parties claim under Micah White, who by deed dated April 10, 1846, acquired title to about 1,775 acres in the town of Hancock, Delaware county, being all of subdivision lot No. 4, of division No. 16, in Great lot No. 35 of the Hardenburgh Patent, except a piece previously sold from the westerly end and a piece of about twenty-five acres on the easterly end. On the 3d September, 1851, White deeded to Ira and Hiram Gregory about 200 acres off from the easterly side of his purchase and running through from the southerly line of lot No. 4 to its northerly line. On the 18th December, 1846, White gave to James H. Sutton a written contract for about 400 acres. This lay westerly of the Gregory purchase and extended from the southerly to the northerly line of the lot. The easterly boundary of the Sutton purchase, as described in the contract, and the westerly boundary of the Gregory purchase, as described in the deed, were identical for about half the way across the lot, commencing at the southern line. The lines then diverged, the Gregory line going north and the Sutton line going north twenty-five degrees west, and each running to the north line of the lot. This left a gore bounded on the north by the lot line, on the easterly by the Gregory line and on the westerly by the Sutton line, and containing about thirtyfive acres. Upon the westerly part of this gore the logs in question were cut. The deed under the Sutton contract was given by White to Sutton on August 9, 1873, and the easterly line is there described the same as in the contract. Sutton, on the 13th August, 1873, gave to Polly Martin a mortgage on the premises conveyed to him, and this was afterwards foreclosed, and the defendant became the purchaser on the 25th November, 1878.

On the 13th November, 1855, Micah White executed to Daniel S. Weeks, Samuel H. Weeks and George Weeks a warranty deed of premises described as follows:

"All that piece or parcel of land bounded and described as follows: Subdivision of lot No. 4, of division No. 16, in Great lot No. 35 of Hardenburgh Patent, said lot No. 4 formerly containing about 1,900 acres, excepting therefrom piece of land sold from westerly end, and about twenty-five acres sold from easterly end and fifty acres heretofore in possession of Stephen Husted, and 400 acres, more or less deeded to James H. Sutton and Charles G. Sutton, formerly contracted to James H. Sutton, and 200 acres, more or less, deeded to Ira B. Gregory and Hiram H. Gregory, which was contracted to Abel Gregory.'

Under this deed the plaintiff, having duly acquired the rights

of the other grantees, now claims to be the owner of the gore referred to.

Upon the trial the cutting of the logs by the defendant, and the value, were admitted. At the close of the evidence the defendant asked for a nonsuit upon the grounds (1) that the plaintiff had shown no title to the lands upon which the timber was cut, and (2) that he had shown no possession in himself and that an action in replevin could not be maintained unless the plaintiff was in possession. This motion was denied and the defendant excepted. The defendant then requested to go to the jury on the question as to whether, between Micah White and James H. Sutton, there was not a practical location of the boundary line at a certain locality which would make the locus in quo a part of the Sutton purchase. This request was denied and an exception taken. It was conceded at the trial that if the descriptions in the deeds to Gregory and to Sutton were followed the premises in dispute would not be included in either. That being so, the paper title of the plaintiff, under the subsequent deeds, became complete, unless there is some force in the point now made by the defendant that the deed to Weeks, in 1855, was so indefinite in its description as not to operate to convey what had not been previously deeded or contracted as therein specified. Whatever indefiniteness there is arises from the use of the word "of" after the word "subdivision." The same form of expression is used in the deed to White, in 1846, that deed, however, containing further provisions which placed the intent beyond question to convey the whole lot except as therein stated. There were no subdivisions of No. 4 except as made in the sales that are expressly excepted in the deed. The total amount in No. 4 is stated and then the exceptions are stated. Taking the whole description together, the intent is clear to convey the balance of whatever the grantor owned in that lot. The deed should be construed the same as if the word "of" after "subdivision" was omitted. The extraneous circumstances were admissible on the question of construction. Thayer v. Finton, 108 N. Y., 399; 13 N. Y. State Rep., 778.

It is further claimed by the defendant that he had the right to go to the jury on the question of practical location.

It appears that prior to the making of the Sutton contract in 1846, the parties went upon the premises with a surveyor and made a survey as incorporated in the contract. There is evidence from which it might be found that in August, 1851, and before the deed to Gregory, White, Sutton and Gregory went upon the premises and marked out a line which, instead of following the last course in the contract to the north line of lot No. 4, followed the high lands in a more direct and northerly course to the north line, and that it was there verbally agreed that Sutton's easterly line should be such new line; that afterwards Sutton occasionally cut timber upon his side up to this new line until his death about 1873. The deed in 1873 to Sutton did not follow the new line, but followed the contract. The defendant testifies that after he purchased in 1878 he did nothing upon this part of the premises until 1880, when he cut some timber that had blown down, and