Appeal from the District Court, Fourteenth Judicial District, Uevada County.

The defendant was a corporation. The plaintiffs, prior to December, 1867, had furnished goods to the defendant upon the order of Withington, who was the foreman of the works and mine of the defendant. On the 11th day of December,

1866, Withington made the contract in writing with the defendant to run the tunnel referred to in the opinion of the Court. In January, 1867, Mr. Allen, one of the Trustees of the defendant, showed the plaintiff Van Dusen this contract, and he read it. Soon after this Withington commenced running the tunnel. Afterwards, and on the 6th day of July,

1867, Withington entered into another contract in writing with the defendant, by which he was to have the privilege of taking rock from the ledge and working the same in the defendant’s mill, at his own expense; and he was, after paying expenses, to apply the surplus of the proceeds of the rock to the work of prosecuting the tunnel. The plaintiffs had no notice of this contract. After this contract was made work was renewed on the mill and ledge, and work on the tunnel was prosecuted at the same time. The goods sued for were furnished, on Withington’s order, between the 8th day of May and 6th day of September, 1867.

The plaintiffs’ testimony tended to show that Ilershey had, for about five years before December, 1866, furnished the defendant with meat on Withington’s order, and continued so to do until September 9th, 1867, without any notice that Withington’s agency had ceased. Both the plaintiffs and Ilershey charged the goods on their account books to the defendant.

On the trial the plaintiffs introduced in evidence the declarations of Withington made to Van Dusen, plaintiff: First, in December, 1866, that “they were going to work on the tunnel, and wanted provisions, and that defendant would pay for them;” and second, in July, 1867, that “they were going to take out rock again and crush it, and wanted some more provisions, and the defendant was to pay for them.” To this testimony the defendant objected, on the ground that WithingtoiTs declarations were not binding upon the defendant; but the Court overruled the objection. The plaintiffs recovered judgment, and the defendant appealed.

The other facts are stated in the opinion of the Court.