Miller, P. J.
There was no error in the finding of the referee that Crawford, as survivor, was indebted to Hildebrant in two promissory notes in the sum of $573.62. These notes were signed by “ J. Kellogg, agent,” and the name of the principal does not appear upon the face of either of them. [505]*505It is alleged in the complaint in the first, and in the answer in the second action, that Kellogg acted as agent in the tobacco business, at Ithaca, for Bidder, Crawford & Palmer for the firm of Crawford & Palmer, survivors, and for Crawford as survivor and successor of Bidder & Palmer. These" allegations are admitted in the answer in the first action, and in the reply in the second action, with the qualification in both that Kellogg had no right to make debts or to give notes, but was prohibited from doing so, which was well known to Hildebrant.
Although the signing of the notes by Kellogg as agent, alone and of itself, would not bind the principal, who is not named, yet, in connection with the allegations in the complaint in the first action, that Kellogg, as agent and for the benefit of his principal, and within the scope of his power and authority, purchased of the plaintiff personal property, for which the notes were given, and the evidence given on the trial, the finding of the referee was fully justified. There can be no doubt that a principal is responsible for the act of the agent, which, although an abuse or excess of his authority, was within the general scope of the business he was employed to transact where the party with whom the business is transacted has no notice of any limitation of authority, and would otherwise suffer loss. (Clark r. The Metropolitan Bank, 3 Duer, 248; Dunning v. Roberts, 35 Barb., 463, 467; Whitbeck v. Schuyler, 44 Barb., 269, 471; Lefler v. Field, 50 Barb., 407-411.) Upon the trial before the referee Crawford testified that Kellogg was an agent for certain purposes; that he had no authority to contract any debt, except through his principals, and was never authorized to give notes or written instruments, or to deal in real estate; but his testimony is contradicted by other evidence in the case, which tends to establish that there was no limitation to Kellogg’s authority. The letters from Crawford, introduced in evidence, recognize Kellogg as agent, and his liability for. Kellogg’s paper as agent, which was laying over. Ho tes and accounts made by Kellogg were also paid by Crawford’s agent, thus again recog[506]*506nizing Kellogg’s authority to create such liabilities. There was ample evidence, I think, to warrant the conclusion that Kellogg was authorized to make the notes in question. But even if there was no positive authority to sign the notes as agent, as the proof showed that Crawford had received the property sold, and had the benefit of it, the notes were at least evidence of the amount of the purchase. If the notes were of no avail the purchasers would still be liable for the property which they actually had; and, in this point of view, the amount reputed as due was right. In De Witt v. Walton (5 Seld., 512), cited by the counsel for Crawford, the complaint was on the note alone, and, hence, the authority is not in point.
Even if it realty be questioned whether oral evidence was admissible where the action is on the note alone, yet, with the allegations in the complaint as to the agency and the purpose for which the notes in question were made, it was clearly admissible to prove in this manner that Kellogg was an agent.
It is insisted that the referee erred in permitting Hildebrant to testify to a conversation between Bidder, one of the partners, and Kellogg, in the presence of Hildebrant, in relation to the taking of produce in payment of the $800 indebtedness.
Kellogg and Bidder were both deceased, and Crawford was the surviving partner. Hildebrant was present at the conversation between Bidder and Kellogg, when Kellogg told Bidder that he had sold the witness the house and lot, and he was to have the produce of the farm to pay for it. Kellogg asked Bidder what he thought of the arrangement to get produce in pay for the house and lot, and Bidder said that he thought it was a good idea. This conversation was designed to show the liability of the firm to Hildebrant on the alleged contract, and the evidence was objected to upon the ground that it was a transaction or communication with a deceased person, within § 399 of the Code, and therefore was not admissible. I think that within the principle of Simmons v. [507]*507Sisson (26 N. Y., 264), the transaction or communication respecting which the testimony was given, was not between the witness and the deceased, but between the deceased and a third person, and therefore the testimony was proper. In the case cited, it was held that the prohibition of § 399 does not prevent a party from testifying in an action in which the legal representatives of a deceased person are adverse parties, to a conversation between the deceased and a third person, which was overheard by the witness, and that the hearing of such conversation is not a transaction between the deceased and the witness. This is directly in point. (See also Lobdell v. Lobdell, 36 N. Y., 333.)
The evidence of the agreement made between Hildebrant and Kellogg as to the house and lot and mortgage, was also competent testimony. It was not a transaction or communication within § 399 of the Code. Nor was proof that the payments were to be made in produce and grain from the farm any contradiction of the written agreement of the mortgage. It was admissible evidence to establish payment in a particular manner.
The statement of Hildebrant’s account was also competent testimony. There was evidence to prove that the books were lost; that the statement was a copy of the account which had been compared with the books. This was the highest evidence which could be produced under the circumstances, and was properly admitted.
I also think that the letters were properly received as evidence. It is alleged that they were immaterial, but it is not-pointed out in what respect, if any, they were liable to this objection. Nor is it apparent from their perusal that they were not pertinent.
The evidence as to the wood alleged to have been delivered to Kellogg, as agent, was objected to upon the ground that there was no such claim made in the pleadings, and no amendment was asked for upon the trial. It does not appear to be named specifically in the pleadings. Nor does it appear from the case that any sum was allowed for wood, and therefore if there [508]*508was error in admitting the evidence, it is not apparent ■ that any injury was done.
As it would have been proper to amend the pleadings so as to include the wood upon the. trial, and I am inclined to think even now an amendment might be made, the admission of the testimony would not be sufficient cause for a new trial.
The position taken that the judgment is against the weight of the evidence, and that therefore it should be reversed, cannot, I think, be maintained. The defence to the mortgage was that the debt had been paid, and the principal evidence to prove payment was the testimony of Hildebrant, to the effect that there was an agreement between Joseph Kellogg, the agent, and himself, which was sanctioned by Bidder, one of the assignees of the mortgage and partners, that it was to be paid in produce from the farm.
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Miller, P. J.
There was no error in the finding of the referee that Crawford, as survivor, was indebted to Hildebrant in two promissory notes in the sum of $573.62. These notes were signed by “ J. Kellogg, agent,” and the name of the principal does not appear upon the face of either of them. [505]*505It is alleged in the complaint in the first, and in the answer in the second action, that Kellogg acted as agent in the tobacco business, at Ithaca, for Bidder, Crawford & Palmer for the firm of Crawford & Palmer, survivors, and for Crawford as survivor and successor of Bidder & Palmer. These" allegations are admitted in the answer in the first action, and in the reply in the second action, with the qualification in both that Kellogg had no right to make debts or to give notes, but was prohibited from doing so, which was well known to Hildebrant.
Although the signing of the notes by Kellogg as agent, alone and of itself, would not bind the principal, who is not named, yet, in connection with the allegations in the complaint in the first action, that Kellogg, as agent and for the benefit of his principal, and within the scope of his power and authority, purchased of the plaintiff personal property, for which the notes were given, and the evidence given on the trial, the finding of the referee was fully justified. There can be no doubt that a principal is responsible for the act of the agent, which, although an abuse or excess of his authority, was within the general scope of the business he was employed to transact where the party with whom the business is transacted has no notice of any limitation of authority, and would otherwise suffer loss. (Clark r. The Metropolitan Bank, 3 Duer, 248; Dunning v. Roberts, 35 Barb., 463, 467; Whitbeck v. Schuyler, 44 Barb., 269, 471; Lefler v. Field, 50 Barb., 407-411.) Upon the trial before the referee Crawford testified that Kellogg was an agent for certain purposes; that he had no authority to contract any debt, except through his principals, and was never authorized to give notes or written instruments, or to deal in real estate; but his testimony is contradicted by other evidence in the case, which tends to establish that there was no limitation to Kellogg’s authority. The letters from Crawford, introduced in evidence, recognize Kellogg as agent, and his liability for. Kellogg’s paper as agent, which was laying over. Ho tes and accounts made by Kellogg were also paid by Crawford’s agent, thus again recog[506]*506nizing Kellogg’s authority to create such liabilities. There was ample evidence, I think, to warrant the conclusion that Kellogg was authorized to make the notes in question. But even if there was no positive authority to sign the notes as agent, as the proof showed that Crawford had received the property sold, and had the benefit of it, the notes were at least evidence of the amount of the purchase. If the notes were of no avail the purchasers would still be liable for the property which they actually had; and, in this point of view, the amount reputed as due was right. In De Witt v. Walton (5 Seld., 512), cited by the counsel for Crawford, the complaint was on the note alone, and, hence, the authority is not in point.
Even if it realty be questioned whether oral evidence was admissible where the action is on the note alone, yet, with the allegations in the complaint as to the agency and the purpose for which the notes in question were made, it was clearly admissible to prove in this manner that Kellogg was an agent.
It is insisted that the referee erred in permitting Hildebrant to testify to a conversation between Bidder, one of the partners, and Kellogg, in the presence of Hildebrant, in relation to the taking of produce in payment of the $800 indebtedness.
Kellogg and Bidder were both deceased, and Crawford was the surviving partner. Hildebrant was present at the conversation between Bidder and Kellogg, when Kellogg told Bidder that he had sold the witness the house and lot, and he was to have the produce of the farm to pay for it. Kellogg asked Bidder what he thought of the arrangement to get produce in pay for the house and lot, and Bidder said that he thought it was a good idea. This conversation was designed to show the liability of the firm to Hildebrant on the alleged contract, and the evidence was objected to upon the ground that it was a transaction or communication with a deceased person, within § 399 of the Code, and therefore was not admissible. I think that within the principle of Simmons v. [507]*507Sisson (26 N. Y., 264), the transaction or communication respecting which the testimony was given, was not between the witness and the deceased, but between the deceased and a third person, and therefore the testimony was proper. In the case cited, it was held that the prohibition of § 399 does not prevent a party from testifying in an action in which the legal representatives of a deceased person are adverse parties, to a conversation between the deceased and a third person, which was overheard by the witness, and that the hearing of such conversation is not a transaction between the deceased and the witness. This is directly in point. (See also Lobdell v. Lobdell, 36 N. Y., 333.)
The evidence of the agreement made between Hildebrant and Kellogg as to the house and lot and mortgage, was also competent testimony. It was not a transaction or communication within § 399 of the Code. Nor was proof that the payments were to be made in produce and grain from the farm any contradiction of the written agreement of the mortgage. It was admissible evidence to establish payment in a particular manner.
The statement of Hildebrant’s account was also competent testimony. There was evidence to prove that the books were lost; that the statement was a copy of the account which had been compared with the books. This was the highest evidence which could be produced under the circumstances, and was properly admitted.
I also think that the letters were properly received as evidence. It is alleged that they were immaterial, but it is not-pointed out in what respect, if any, they were liable to this objection. Nor is it apparent from their perusal that they were not pertinent.
The evidence as to the wood alleged to have been delivered to Kellogg, as agent, was objected to upon the ground that there was no such claim made in the pleadings, and no amendment was asked for upon the trial. It does not appear to be named specifically in the pleadings. Nor does it appear from the case that any sum was allowed for wood, and therefore if there [508]*508was error in admitting the evidence, it is not apparent ■ that any injury was done.
As it would have been proper to amend the pleadings so as to include the wood upon the. trial, and I am inclined to think even now an amendment might be made, the admission of the testimony would not be sufficient cause for a new trial.
The position taken that the judgment is against the weight of the evidence, and that therefore it should be reversed, cannot, I think, be maintained. The defence to the mortgage was that the debt had been paid, and the principal evidence to prove payment was the testimony of Hildebrant, to the effect that there was an agreement between Joseph Kellogg, the agent, and himself, which was sanctioned by Bidder, one of the assignees of the mortgage and partners, that it was to be paid in produce from the farm. It is claimed that this testimony is contradicted by various facts and circumstances; but it is a sufficient answer to this position to say that while many of those facts tend strongly to contradict Hildebrant, it is by no means clear that they are not sufficiently explained. It was a question of credibility to a great extent, and the referee, after hearing Hildebrant testify, has thought proper to credit his direct testimony and the explanation he has given to the facts which seem to contradict his statements. I am not prepared to say that there is such a preponderance of testimony against Hildebrant’s version of the matter as would justify a reversal of the referee’s decision upon this question of fact.
The referee allowed Hildebrant costs in both actions, although both actions were heard together. I see no reason why the party succeeding should not have costs in both actions, so far as they were separated. When heard together, perhaps, only the trial fee is chargeable; but until a trial, the costs must necessarily be separate. This is not a case where causes are consolidated in one action by order of the court and a single suit only is pending. (See 17 Wend., 228.) The decision of the referee was correct, and the amount to be taxed was a question to be determined upon the adjustment [509]*509of the costs. If any improper charge was made, the clerk should have deducted it, and if he erred, it should be corrected in an appeal from the taxation.
There is no other question in the case which requires discussion, and there being no error, the judgment must be affirmed with costs.
Judgment affirmed.