The plaintiffs sue for several amounts alleged to be due to them for goods sold and delivered. The first count in the complaint is on a special contract to the effect that the defendant promised the plaintiffs if they would furnish certain provisions to Withington & Co., who were running a tunnel for the defendants, and in the event that Withington & Co. failed to reach the ledge, the defendant would pay for the provisions. The averment is that the provisions were furnished on this agreement; that the rock turned out to be so hard as to be impervious, and Withington & Co. were unable to reach the ledge, and by reason thereof the defendant became liable under its contract to pay for the provisions.
The second is the ordinary count for the price of goods sold and delivered by the plaintiffs to the defendant; and the third count is for a butcher’s bill alleged to have been due from the defendant to one Iiershey, and which was assigned to the plaintiffs.
The plaintiffs had a verdict and judgment, and the defendant, having made a motion for a new trial, which was denied, has appealed.
The proof under the first count was, in some degree, conflicting; but, in our opinion, the weight of the evidence was in favor of the plaintiffs. At all events, we cannot disturb the verdict on this branch of the case, on the ground that the plaintiffs failed to prove their cause of action, as alleged.
The proof under the second count is, that one Withington had been for several years the foreman of the defendant’s quartz mill and mine, during which period he had been in the habit of ordering from the plaintiff:- provisions for the use of the hands at the mine and mill, and the bills therefor had always been paid by the defendant, without objection; *576that in December, 1866, a written contract was entered into between the defendant, on the one part, and Withington and two other persons of the other part, whereby the- latter agreed to run a tunnel for the defendant, and on the terms therein stated; and it was a condition of the contract that if Withington & Go. should not succeed in reaching the ledge, the defendant was to defray the expense of the provisions used during the prosecution of the work; that the plaintiffs had notice of this contract, and that work was being done on the tunnel under it. There was evidence tending to show that work on the tunnel had to be abandoned before the ledge was reached, because the rock became too hard to be worked. The tunnel was therefore abandoned, and work at the mine and mill was resumed as formerly, Withington apparently acting as foreman, in the same manner as he had done before the tunnel was commenced. Under these circumstances he purchased from the plaintiffs the goods mentioned in the second count of the complaint, saying he was purchasing them for the defendant, who would pay for them.
The defendant objected to the proof of his declarations, as incompetent evidence; and it appears that Withington was in fact working the mine on his own account, under a written contract with the defendant-, of which the plaintiffs had no notice. The proposition of the defendant is that the plaintiffs had notice of the contract for running the tunnel; that this was sufficient notice that the agency of Withington as foreman for the defendant had ceased; that when the tunnel was abandoned and work was resumed on the mine and mill, the plaintiffs were not authorized to infer that the former relations between Withington and the defendant had been re-established; and that the defendant did nothing to warrant or encourage that belief.
We think the contract- for the tunnel was sufficient notice to the plaintiffs that the agency of Withington as foreman was at that time terminated. It contains a provision that Withington and his associates were to have the use of the *577defendant’s tools, and were to keep them in repair at their own expense, and were to purchase all the provisions of the defendant then on hand; “and, further, to make the said Star Company at no expense whatever, except as above stated.” It further appears from the contract that the compensation for running the tunnel was to be one thousand five hundred dollars, whenever that amount shall have been realized from the rock to be taken from the ledge after it shall have been reached; the defendant “to take charge of the mill and mine when the ledge as aforesaid is reached or the mill commences crushing.”
These provisions make it plain that during the progress of the work Withington was not acting as foreman for the defendant, in any matter pertaining to the mine and mill. The plaintiffs admit that they had full notice of this contract, and they must be held to have known that the agency had ceased. But after the tunnel was abandoned, operations at the mine and mill were resumed and carried on, apparently, as they had been before, and no notice was given to the plaintiffs that Withington was conducting the work on his own account, and not for the defendant. Under these circumstances, were the plaintiffs authorized to deal with him as the agent of the defendant? We think not. When the agency had once ceased and the plaintiffs knew it, the declarations of Withington were not competent evidence to establish a new agency; and there is no proof that the defendant performed any act tending to delude the plaintiffs into the belief that Withington had again become its agent. It permitted him, it is true, to work the mine and mill at his own expense and for his own benefit; but as the plaintiffs were aware that the former agency had ceased, they had no j ust right to conclude that a new agency had been established, from the mere fact that Withington was again conducting operations at the mine. The Court, therefore, erred in admitting in evidence the declarations of Withington as to his agency; and so much of the verdict as relates to the *578cause of action set up in the second count of the complaint is unsupported by the evidence.
We cannot disturb the verdict so far as it is founded on the cause of action alleged in the third count. The course of dealing between Ilershey and the defendant was sufficient proof of the original agency; and the testimony is conflicting in respect to the knowledge of Hershey that the agency had terminated. We cannot say that the verdict on this branch of the case is unsupported by the evidence.
There is nothing in the record to enable us to ascertain the precise amount of the erroneous recovery on the second count of the complaint; otherwise, we would modify the judgment, and affirm it as to the remainder of the recovery.
The judgment is therefore reversed, and the cause remanded for a new trial, and remittitur directed to issue forthwith.