delivered the opinion of the court.
The issue of fact submitted to the jury was as to the alleged agency of Unger and his consequent authority to bind appellants. Upon that issue the evidence was so considerable and so directly conflicting that a court of review could hardly determine that a verdict for either litigant would be manifestly against the weight of the evidence. We are not prepared to say that the verdict as rendered is not sufficiently sustained by the evidence. We have, then, merely to pass upon questions relating to procedure. It is urged first, that the court erred in admitting, over the objection of appellants, evidence of conversations between Unger, the alleged agent, and appellee. It is contended that statements of Unger in such conversations, by which his agency was declared, could not be admitted to bind the alleged principals, appellants, who were not present. Nevertheless, we are of opinion that the trial court did not err in admitting the evidence of conversations and transactions between Unger and appellee. There being the direct and positive testimony of Unger as to the fact of the agency, it was proper to admit evidence of the transactions of the alleged agent in relation to the subject-matter in question, and if in the course of such transactions conversations occurred in which statements were made by Unger affirming his agency, the court could limit the effect of the evidence in this behalf by instructing the jury that such statements were not to be considered as evidence of the fact of agency. Doubtless the court would have given such an instruction had it been so requested. The agency could be proved by the testimony of the alleged agent. Thayer v. Meeker, 86 Ill. 470.
And after such proof was made, it was proper to admit evidence of the transactions and statements of the alleged agent in his dealings with appellee. The Ind. & St. L. R. R. Co. v. Miller, 71 Ill. 463.
If the declaration of Unger as to his agency had stood alone, not part of transactions which were material, then evidence of such declaration should have been excluded.
Secondly, it is urged that if the agency was established and an express authority shown to draw upon the prihcipals for amounts needed to carry out the business of the agency, viz., the buying of horses, yet this would not carry with it an authority or power to procure an indorser of the drafts so drawn, and hence that the appellants are not obligated to appellee. As applied to the facts here, we can not assent to the contention. Nor do the authorities cited sustain it. The text and cases cited bear only upon the power of the agent to bind the principal by indorsing drafts in his name when the express authority is to draw only. Here the agent did as he was authorized, drew upon-appellants, and we can not see that it is material whether he named as payee the party from whom he purchased the horses, the bank from which he received funds with which to pay for the horses, or appellee, who was keeper of a feed stable, was aiding in caring for the horses purchased, and who, being made payee in the draft, indorsed it to the bank which advanced the funds for the purchase of the horses.
If the evidence as to the fact of the agency and the authority to draw upon appellants is to be credited, then we are of opinion that Unger had power to bind the appellants to appellee upon the draft in question. Mechem on Agency, Sec. 311, et seq.; Commercial Bank v. Norton, 1 Hill, 501; Bickford v. Menier, 36 Hun, 446; Doan v. Duncan, 17 Ill. 272; Noble v. Nugent, 89 Ill. 522; Crain v. Natl. Bank, 114 Ill. 516.
The third contention is that it was error to admit evidence to show what prices the horses sold for in Chicago, and what prices appellants and others who bid in certain of them afterward realized on them through later sales.
The contested issue of fact involved the question as to whether these horses Avere the property of appellants, bought for them by appellee, as their agent, or Avhether they Avere the property of appellee and merely sold by appellants as commission brokers. As circumstances bearing upon this issue and competent to be submitted to the jury, we are of opinion'that it Avas proper to admit eAndence to show that appellants in their own names, or upon joint account Avith others, bid in at the sale certain horses at a certain price, and afterward resold them at a comparatively much larger sum. In one instance a horse Avas thus bid in at $107.50 and resold at $1,000. It Avas not pretended that the salelat $1,000 Avas for the benefit of Unger.
Fourth. It is urged that the draAving of the two former drafts, one of which was indorsed by appellee, as Av.as the draft in question, was not a fact material or competent to go to the jury. The evidence disclosed that appellee learned that the draft previously indorsed by him had been honored by appellants before he indorsed this draft. We are of opinion that it Avas competent to thus shoAv the previous transactions of these parties and that appellants had honored the former drafts. Mabley v. Irwin, 16 Ill. App. 362; U. S. Y. Co. v. Mallory, 157 Ill. 554.
• Fifth. The objection to the last interrogatory in the deposition of Unger is not tenable. If anything improper had resulted in the ansAver, it could have been reached by specific objection to the answer.
The contention under the sixth heading has been already considered.
Seventh. It is objected that the deposition of one Brat-ton was not taken at the time named in the stipulation. The certificate of the notary public as to the taking of the deposition is not set forth in the abstract. We are therefore unable to determine Avhat adjournments were had. The deposition was taken upon written interrogatories. 3STor is the fact that the deposition Avas only returned to the court on February'23d, the day when the cause was set for •trial, any sufficient- ground for suppressing it. If any prejudice to appellants was likely to result from the late return of the deposition, the proper practice was to interpose a motion for continuance over the term, or for delay until preparation for trial could be made. This was done in this cause, and appellants were given until March 1st to prepare for trial, until which time the trial was postponed.
Under the eighth and ninth heads complaint is made of rulings of the court in giving and refusing instructions. Without going into a needless discussion of these rulings upon the instructions, it is enough to say that we find no error which we deem reversible, or which seems likely to have prejudiced appellants.
Tenth. Books of account were produced by appellants, upon notice by appellee, and were not inspected nor used in evidence by appellee. It was claimed by counsel for appellants that the notice to produce made them admissible. Had appellee, after having given notice to produce, inspected the books, a ^different question would be presented. But appellee did not inspect them, and we are not prepared to hold that the effect of the mere notice to produce, without inspection, operates to render admissible documentary evidence, otherwise incompetent.
Inasmuch as the evidence is suificient to sustain the verdict, and as .we find no reversible error in the record, the judgment is affirmed.