
    Miles B. Riggs et al., Resp’ts, v. D. Rollo Warner, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed December 30, 1887.)
    
    1. Agency—Revocation of—What is not notice of.
    For some time this defendant and his family resided upon a farm owned by him, and his father during a portion of that time resided in the same house with him and a part of the time in another house. During that period the defendant bought goods of the plaintiffs. These dealings went into account upon the plaintiffs' books, and payments made in cash and produce were from time to time credited to the defendant’s account. The purchases made on the defendant’s account were sometimes made by the defendant, and at others by the father and hired man. Subsequently the defendant left the farm and took up Ms residence elsewhere, Ms father remaining there and making purchases of the plaintiffs as formerly ' This action is for that portion of the account for the goods sold after the defendant left the farm. It is claimed by the defendant and his father that after the former had left the farm the latter bad no authority to get the goods on his account. Evidence showed that in all the transactions which produced the account the plaintiffs treated the father as agent of the defendant, and it was testified by one of the plaintiff’s that after it had accrued, one of the plaintiffs drew a note for the defendant to make the amount of the balance, and that he handed the defendant a copy of the account, to which he made no objection. Held, that knowledge on the part of the plaintiffs that the defendant had left the farm, did not necessarily require the conclusion that the plaintiffs had notice that the relation formerly existing between the defendant and his father was terminated at that time, as the defendant’s stock and utensils remained and were used on the farm apparently as before.
    3. Same—Pbbsumption as to continuance.
    
      Held, that for want of notice of revocation of the agency existing between the defendant and his father, the plaintiffs were at liberty to assume that it continued after as it had before the defendant ceased to reside on the farm.
    8. Same—Evidence—Res gestas.
    
      Held, that the transaction wMch occurred between one of the plaintiffs and the defendant’s father at the time the account was figured up and the note drawn and handed to the latter, was competent as evidence, being part of the res gestee.
    
    Appeal from judgment of Wayne county court affirming judgment of a justice of the peace.
    
      P. Chamberlain, Jr., for app’lt; S. B. McIntyre, for resp’ts.
   Bradley, J.

The plaintiffs’ recovery was upon an account for goods alleged to have been sold by them to the defendant. It appears that in 1882, and into October, 1883, the defendant with his family resided upon a farm owned by him in the town of Macedón, Wayne county; that his father, Giles Warner, and family also resided on the farm— a portion of the time in the same house with the defendant and a part of the time in another house on the farm. During that period tlie defendant bought grain, feed, etc., of the plaintiffs, who operated a mill at Macedón, and were dealers there in the firm name of M. B. Biggs & Son. The dealings between the plaintiffs and defendant went into an account upon the plaintiffs’ books. And payments made in cash and produce were from time to time credited to the defendant’s account. The purchases of the plaintiffs on. account of the defendant were sometimes made by the defendant, other times by the father and the hired man.

In October, 1883, the defendant went to Lyons to reside, where he has since resided. He left his stock, farming utensils, etc., on the farm and his father remained there, and afterwards purchased feed, flour, grain, etc., from time to time of the plaintiffs, which were called for and taken by the father and the hired man engaged upon the farm. And the goods so purchased were entered by the plaintiffs in the-account upon their books with the defendant. The controversy relates to that portion of the account for the goods sold after the defendant left the farm. And he and his father testify that after that time the latter had no authority to get the goods on the account or credit of the defendant; and the-latter says that he leased the farm and the stock upon it to his father, and had nothing to do with its operation and proceeds after he left it in October, 1883, but that he had some grain there at that time which his father afterwards, delivered for him to the plaintiffs on his account then remaining unpaid.

It appear^ that the plaintiffs treated the defendant as the principal, and the father as his agent, in all the transactions of the deal which produced the account, and that after it had accrued one of the plaintiffs drew a note for the defendant to make for the amount of the balance.' And he says that he handed to the defendant a copy of the account and that he made no objection to it. This is contradicted by the latter. But it does appear and is not questioned that the plaintiffs had no notice of any change in the relations of the defendant and his father in the business, on the farm, unless it was furnishéd by knowledge of the fact that the defendant had left the farm, which we think did not ■ necessarily require the conclusion of notice to the plaintiffs that such relation was altered, as the defendant’s stock and utensils remained and were maintained and used apparently as before that time on the farm. And for want of notice of revocation of the relation of the father as agent of the defendant, the plaintiffs were permitted to assume that it continued after as it had before the defendant ceased to reside on the farm. And therefore, the defendant was chargeable upon the account for goods, etc., obtained through the same agency, in the same line of trade, for use upon the farm as before, and upon the faith that they were ordered and obtained upon his account and credit. McNeilly v. Continental Life Insurance Company, 66 N. Y., 23; Claflin v. Lenheim, id., 301.

The motion for .non-suit was properly denied. And we see no error to the prejudice of the defendant on the trial. The want of notice to the plaintiffs of any changed relation of the defendant to the business of the farm was a. legitimate fact on the trial and no objection was taken to the manner of proving it, or to the form of the question put to the witness in that respect. The transaction which.; occurred between one of the plaintiffs and the defendant’s ' father at the time the account was figured up and the note . drawn and handed to the latter, was not incompetent; and what was said at the time, having relation to it was part of the res gestee. There is evidence bearing upon the merits which is not herein referred to. And as a whole the evidence was such as to present a question of fact; and sufficient to support the judgment of the justice.

The judgment should be affirmed.

Smith, P. J., Barker and Haight, JJ., concur.  