delivered the opinion of the court.

By stipulation of the parties it wás agreed that all the evidence presented in case No. 3,861, Campbell v. Oriental Trading Co., ante, p. 520, 193 Pac. 1112, should be admitted and considered by the court in the present case, and, subject to the objections there made, the issues of both law and fact should be determined thereon.

It appears in the testimony that Tarada, the reputed agent [1] of the defendant, accompanied by N. Goto, foreman of extra gang No. 6, went into the place of business of the plaintiff and made representations similar, to those made to P. H. Campbell, the plaintiff in the preceding case, viz., that he was *525the agent of the Oriental Trading Company, and that he desired plaintiff to sell and deliver to Goto supplies for the gang under his charge, to charge them to him (Goto), and send the bill to “us” not later than the 25th of the month, and “we” would pay the bill; that after some discussion, plaintiff delivered the goods required to Goto, and, apprehending that difficulty might arise if the account were not presented before December 25, pay-day, on December 15 plaintiff forwarded that account, addressed to “H. Tarada, agent of the Oriental Trading Company, at Livingston, Mont.” In addition to the evidence considered, in the preceding case, it appeared that after some conversation over long-distance telephone with some person in the office of the defendant at Livingston a check was forwarded from that place in payment for the goods sold to Goto. The account here involved covers merchandise sold and delivered by plaintiff to defendant between December 15, 1914, to February 3, 1915. For these reasons and those given in the opinion in ease No. 3,861, Campbell v. Oriental Trading Co., ante, p. 520, 193 Pac. 1112, the judgment and order denying a new trial are affirmed.

Affirmed.

I dissent for the reason that I do not think there is sufficient proof .of agency.

Rehearing denied December 18, 1920.