prepared the following opinion for the court:
This action was brought to recover the sum of $218.86 for one carload of shoddy alleged to have been sold and delivered by plaintiff to defendants. It was. alleged that the shoddy was delivered to the defendants on board the cars of the Great Northern Railway Company at Minneapolis. Defendants denied the sale and delivery. The defendants did not receive the shoddy from the railway company. It seems that it was destroyed while in the company’s charge. B'y agreement of counsel the lower court referred the cause to J. L. Wines, Efeq., to take testimony, with directions to report the same with his con*413elusions of fact and law. The referee did as directed/and reported, as his findings and conclusion, that the plaintiff should have judgment as prayed for. Thereupon the court adopted the referee’s report and entered judgment in accordance therewith.1 The defendants moved for a new trial, which was denied. From the judgment, and order denying their motion for a new trial, they have appealed.
The only question raised by defendants is that of delivery. The case was tried upon the theory that, if the shoddy was delivered to the Great Northern. Railway Company "at Minneapolis, the defendants are liable; otherwise not. It appears that at the time of the alleged delivery the tariff on shoddy was $1.75 a hundred in carload lots, while that on rags was but $.75 a hundred. Plaintiff shipped the shoddy as rags, at defendants’ instance, as he claimed. The shoddy was encased in burlap, and was thus concealed, so that one could not tell from the appearance of the packages whether they contained shoddy or rags.
It- is contended by defendants that there never was> a delivery to the railway company, because it is. not shown that any authorized agent of the company received the shoddy, and because the plaintiff worked a fraud on the railway company when he shipped shoddy as rags. Much interesting discussion has been indulged in by counsel, but under the view we take of this case its consideration is unnecessary.
Granting that some immaterial evidence was admitted, there is sufficient competent evidence in the record to sustain the judgment. (Lane v. Bailey, 29 Mont. 548, 75 Pac. 191.) There was evidence strongly tending to show that the shoddy was delivered to the railway company, and that it knew plaintiff -was shipping shoddy as rags. The evidence was conflicting, and upon it both the referee and court found for the plaintiff. Under such, circumstances the judgment "will not be disturbed. (Nelson v. Great Northern Ry. Co., 28 Mont. 297, 72 Pac. 642; Hefferlin v. Karlman, 29 Mont. 139, 74 Pac. 201.)
*414We are therefore of the opinion that the judgment must be affirmed.
Per Curiam.'Por the reasons given in the- foregoing opinion, the judgment is affirmed.
Mr. Chiee Justice Bbantly, deeming himself disqualified, takes no part in this decision.