The testimony of Hill, Talcott and Avery showed transactions in the lumber business by sales from them to the defendant, from 1867 to May, 1870. Henry A. Royce made most of these purchases and they were paid for by the defendant’s notes which were paid. As late as April or May, 1870, Schoonmaker told Hill that he would be responsible for all which Royce wanted to buy, and that he shared in the profits of the sales. Royce was insolvent and had no financial credit prior to this time. Although these transactions were not with the plaintiff, I think they were competent proof in connection with similar previous dealings proved to have been had between the plaintiff and the defendant in which charges were made against the defendant by the plaintiff for lumber sold, and notes taken from and paid by the defendant for the same.
The whole evidence tended to establish that the defendant had allowed Royce, as his agent, to purchase lumber on his individual account; to have the same charged to the defendant, and that the defendant had settled the account by his own notes which were paid. In fact, the proof established that the defendant was really the debtor to whom the credit was given.
In addition to this, it was not contradicted by the defendant that he had admitted virtually to Hill that he was a partner sharing in *526the profits, nor was the fact denied by Eoyce that such a partnership existed.
As the evidence stood it appeared that the defendant had allowed Eoyce to act for him as an agent, for a long time, sanctioned what he had done, and in feet conducted as if he was the real party, and I think that he could not relieve himself from liability for future purchases made under the same circumstances, by the. same agent, without first giving notice to the party with whom he had been dealing, that he would no longer remain liable. As he had conferred authority upon Eoyce to make purchases on his behalf, he occupied the position of one who authorizes another to use his name in conducting and carrying on a business, and was liable even if he had no beneficial interest therein. As the plaintiff had sold to the agent upon the credit of the principal, the presumption is that he gave credit to the principal, and to shift the responsibility on the agent the proof should be satisfactory that he sold upon the credit of 'the agent alone. Ferris v. Kilmer, 48 N. Y. 300. The rule is that if the agent, acting within the apparent scope of his authority, transcends his real authority, the principal, rather than the party dealing with the agent, should suffer. Johnson v. Jones, 4 Barb. 369; Exchange Bank v. Monteath, 17 id. 171. The testimony of Reuben S. Eoyce shows that there was no agency, but this only raises a question of fact for the referee to determine, and with the proof given and in view of the important fact that the defendant was not called to testify on that subject, there was sufficient to authorize the finding of the referee that such agency existed.
There was also sufficient evidence of a delivery of the lumber, and no such contradiction of the plaintiff’s testimony as would authorize the referee to disregard it entirely. It was a question of credibility between the plaintiff and Eeuben S. Eoyce, whether notice was given to the plaintiff that the agency had ceased, and the finding of the referee that no notice had been given, can be upheld. Nor was there any inconsistency in the finding that on the 17th of August, 1870, the agency of Henry A. Eoyce had ceased, and the finding that no notice was given to the plaintiff. Both these facts might very well exist, and yet the defendant be liable for want of notice for the purchases made on the 17th of August.
The referee committed no error in refusing to dismiss the complaint, and was, I think, justified in his conclusion that the-defendant was liable for the lumber sold.
*527The defendant’s counsel insist that there was error in admitting evidence objected to, subject to his retaining or rejecting the evidence at the conclusion of the case. The case of Peck v. Yorks, 47 Barb. 131, sustains this doctrine, and the rule laid down is placed upon the ground that it is so held in Clussman v. Merkel, 3 Bosw. 402; Brooks v. Christopher, 5 Duer, 216; also McKnight v. Dunlop, 5 N. Y. 537. I do not understand that the first two cases last cited sustain this doctrine, nor that the last case goes to such an extent. So long as the evidence received was competent, which was the fact in the case at bar, I do not see how the decision made could operate injuriously, or in any way affect the plaintiff’s rights. The decision of the question was not necessary for a proper disposition of the case in 47 Barb., and a new trial was granted upon other grounds. Therefore the remarks were obiter and are not controlling. In some cases, perhaps, such a ruling might prove injurious and hence be liable to exception, but here I think that it must be considered the same as if the testimony had been admitted absolutely, and as it bore on the case and was entirely proper, that there was no error.
The decision of the referee was right, and there being no legal error upon the trial, the judgment must be affirmed, with costs.
Judgment affirmed.