
    A. A. Cooper Wagon & Buggy Company, appellant, v. Fred B. Torbert, appellee.
    Filed February 26, 1910.
    No. 15,926.
    Principal and Agent: Authority ob Agent: Release ob Guarantor. In a suit by a manufacturer of farm implements to recover from a retail agent the balance due on purchasers’ notes guaranteed-by him, the foundation for proof that he had been released from liability on the guaranty by an agreement with plaintiff’s traveling representative to procure chattel security for purchasers’ notes, held sufficient as to such representative’s authority, where defendant, without objection or contradiction, testified he had transacted business with him as plaintiff’s agent and his acts had been approved by plaintiff; had bought goods from him and turned over to him for plaintiff money and notes in settlement; had purchased goods from him which plaintiff had delivered; had made' settlements with him and plaintiff had accepted the benefits thereof; and had performed his agreement by procuring chattel security, which the record shows to have been accepted by plaintiff.
    Appeal from the district, court for Boyd county; AVilliam II. AAIestover, Judge.
    
      Affirmed.
    
    
      N. D. Burch, for appellant.
    
      A. JI. Tingle, D. A. Harrington and Jeannette Taylor, contra.
    
   Rose, J.

Plaintiff is an Iowa corporation engaged in manufacturing and selling wagons, buggies and farm implements, and defendant was its agent at Dorsey, Nebraska. Under the contract of agency defendant was required to keep a Stock of goods on hand and to make sales at retail. He was authorized to accept, in settlement for vehicles sold, farmers’ notes payable to plaintiff, and was required to deliver the proceeds in notes or cash to plaintiff, and to make monthly reports of sales and of goods on hand. The contract also contained a provision requiring defendant to guarantee payment of all notes delivered to plaintiff. The petition contains two counts. On the first, plaintiff seeks to recover on an open hook account, running from June 11, 1901, to November 27, 1904, a balance of $260. On the second,' judgment is demanded for a balance of $589.26 on unpaid notes guaranteed by defendant. As to the first count, defendant denies the indebtedness in tolo} alleges the account was settled, and that plaintiff owes him $315.54. As a defense to the second count, defendant alleges he is not indebted to plaintiff in any sum whatever on account of the guaranty pleaded. " Tie also pleads, among other things, a release from liability on the guaranty by performance of a subsequent agreement entered into with plaintiff, through its agent P. J. Donoher, to take from purchasers and turn over to plaintiff chattel security for notes. Upon a trial to a jury a verdict was rendered in favor of defendant for $10.70, an;l from a judgment thereon plaintiff has appealed.

To defeat the first cause of action, defendant testified to a settlement with plaintiff, through its agent P. M. Barron; and the first reason urged for a reversal is that there is no proof of Barron’s authority to act in that capacity. If this position is well taken, defendant nevertheless testified positively, without objection, that his books of account showed a balance in his favor. He also testified that he was not indebted to plaintiff in any sum. An examination of the record shows that as to the first cause of action the evidence is sufficient to sustain 'the verdict in favor of defendant.

In establishing his defense to the second cause of action, defendant testified to facts tending to show he had entered into and performed an agreement for his release as guarantor, that he made the_ agreement with plaintiff, through its agent P. J. Donoher, and that he was released by taking and turning over to plaintiff chattel security instead of the guaranteed farmers’ notes authorized by the original contract. Plaintiff next argues there is no foundation for this proof because there is no evidence that Donoher had authority to act for plaintiff in making such an agreement. The following is a summary of the testimony of defendant on this subject: He was acquainted with Donoher, who was plaintiffs traveling representative. Defendant had transacted business with him as plaintiff’s agent, and plaintiff had approved his acts; had bought goods from him ana turned over to him for plaintiff money and notes in settlement; had purchased goods from him, which plaintiff had delivered; and had made settlements with him, and plaintiff accepted the benefits thereof. Defendant • also detailed a number of transactions with Donoher in which he acted for plaintiff. This testimony was admitted in evidence, without objection, and is uncontradicted. In addition, the record shows defendant procured chattel security pursuant to the terms of the new agreement, and that plaintiff accepted the fruits of performance on his part. In absence of objections or contradictory evidence, the testimony, as a foundation for proof of plaintiff’s release, will be held sufficient on appeal. >

The evidence being sufficient to sustain the verdict, and no other assignment of error being argued, the judgment will be

Affirmed.  