Defendant’bought a mare from plaintiff at auction sale, which he took home without having' paid the purchase price. On the next day he took the mare to Spencer, but, not finding the vendor, he talked with the person who had acted as clerk of the sale. He then left the mare with the town marshal. This action was brought to recover the purchase price. Judgment for plaintiff. New trial denied. Defendant appeals..
Defendant was not peimitted to relate the conversation he had with the person who had acted as clerk of the sale on the previous day. The principal assignments of error are based upon the theory that the person who acted as clerk of the sale thereby became the agent of the vendor for the purpose of notice of a rescission of the contract. We find no foundation in law for the theory, nor anything of fact in the record justifying it. The conversation that took place between them on the day after the sale and in the absence of plaintiff was plainly incompetent.
The judgment and order appealed from are affirmed.
McCO’Y, J., not sitting.