#### SOUTHERN FERTILIZER COMPANY v. C. E. MOORE, et al., Executors of MOSES MOORE.

Contract — Cancellation—Evidence.

Where, in the trial of an action on a contract for the sale of fertilizers, it appeared that M. and his son were agents for the plaintiffs under a contract which contained the provision that “this contract shall remain in force until cancelled,” and that on December 16,1885, the son wrote to plaintiffs, “ I wish to sell your fertilizers again next year, and prefer selling myself. My father is getting very old, and does not care to have his name connected with the agency,” and that he would like to have the advertising matter in his name, to which the plaintiff replied, “Let the contract stand exactly as it is,” and there will be no trouble as to the advertising matter, “assuming that it is your father’s desire,” and it also appeared that some of the letters written by plaintiff were addressed to father and son, though no communication passed otherwise between ,the father and the plaintiff ; Held, that the evidence did not prove a cancellation of the contract.

Civil ACTION, beard before Coble, J., at Spring Term, 1895, of Nash Superior Court, on plaintiff’s exceptions to report of Thomas W. Battle, Referee, who found as a conclusion of law that the contract referred to in the opinion of Chief Justice Faibcloth was not a continuing one. The • exceptions were ' overruled, and from the judgment for defendant the plaintiff appealed.

Messrs. H. G. Connor and F. A. - Woodard, for plaintiff (appellant).

Messrs. Jacob Battle and R. 0. Burton, for defendants.

*192Faircloth, C. J.:

This action is brought to recover the proceeds of the sales of fertilizers for the years 1885 and 1887. The claim for 1885 is barred by the ‘Statute of Limitations.

Moses Moore and his son M. R. Moore contracted in writing in February, 1885, to sell plaintiff’s fertilizers as their agents, and it was stipulated in the contract, signed by all the contracting parties, that “ this contract to remain in force until cancelled.” On December 16, 1885, M. B. Moore wrote to the plaintiff, “ I wish to sell your fertilizers again next year and prefer selling myself — my father is getting very old and does not care to have his name connected with the agency,” and that he would like to have the advertising matter made out in his name. On the next day the plaintiff replied to M. B. Moore: “ Let the contract stand exactly as it is” and there will be no trouble in putting on the advertising matter your name, “ assuming it is your father’s desire.” Other correspondence %vas had during the year 1886 about the business. Some of the letters before us, written by plaintiff, were addressed to M. B. and Moses Moore on their face. No communication between Moses Moore and the plaintiffs appears in the case. Whether the letter of December 16, 1885, was sent by M. B. Moore as the agent of his father, does not appear, or whether it was done on his own motion. Iiis own declaration would not be sufficient to establish agency. We have looked through the evidence and conclude that the contract was not cancelled as to the plaintiff, whatever the father and son may have intended as between themselves, and that defendants are liable according to the case as now presented.

Judgment Reversed.