McCartney

The defendant appeals from a judgment rendered against him on an account for merchandise sold and delivered to the defendant.

Appellant was the owner of a parcel of land on which there was an orchard of fruit trees. The premises also were used,as a poultry farm. Some time during the year 1917 he placed on this farm as manager one Masterson. At the trial of this action it was claimed by appellant that Master-son was there as his tenant. He admits, however, that concerning Masterson’s relation to the ranch “there is a balanced conflict of testimony.” As the trial court, on that conflicting evidence, determined that Masterson was appellant’s agent and manager, we must accept that as a settled fact of the case. The merchandise in question was used as feed for the poultry. It was furnished from time to time on orders given by Masterson. In December, 1917, respondent sent to appellant a bill for the sum of $157.74 then due. Appellant replied by mailing to respondent his check for $150 to be credited on account, and together with said check sent a letter in which he said: “The chicken business is slow so do not charge anything to me from this until I can see your concern nor unless you…