There was no error in overruling the demurrer to the second paragraph of the answer. It denied that the trees and vines were of any value whatever.
There was no error in allowing parol evidence of the memorandum on the back of the order. It was not a contract, but a simple memorandum, and proper for the witness to use to refresh his memory, but it should not have been introduced in evidence as a paper. As there was nothing in it of substance, however, this error cannot work a reversal. As to the objection to the proof of an agreement to replace the trees which should not grow, as being in contradiction to the order for the trees, there is no force in-it. The order was not a contract binding both parties, but simply an order, which required the person sending it to accept the articles ordered. An agreement to replace any •defective trees would not conflict with this written direction.
The evidence of the witness Hilderman, as to the terms on which Rockwell sold trees to the defendant or to others, was not proper as proof of the contract in this case. It was not part of the res gestee. Hynds v. Hays, 25 Ind. 31. The agency not being proved, it could not bind the principal. hTor was the evidence of the witness Anther, that his trees did not grow, admissible, standing alone. But all this evidence was proper as steps in proving the authority of the agent; it would have -been made complete by showing the recognition by Miller, Swan & Co. of similar contracts.
As the court should have charged the jury what effect to give to all this evidence, and as the charges given are not presented by the bill of exceptions, we must .presume in favor of the action of the court.
The judgment is affirmed, with costs.