Child, Hibbler & Pearson v. Wofford, 3 Ala. 564

COLLIER, C. J. There cari be no doubt that' the declarations of a party are sometimes evidence in his favor, as constituting a part of the res gestee; but to be a part of the res gestee, the declarations must have been made at the time' of the act done, which they are supposed to characterize, and well calculated to unfold the nature and quality of the facts they were intended to explain, and so to harmonize with them, as obviously to make one transaction. Enos v. Tuttle, 3 Conn. Rep. 250.

If the intentions of the defendant in sending his order to Child, or his belief in receiving the goods, could serve, to explain the transaction, or in any manner to determine the rights of the plaintiffs, they would be admissible under the rule we have stated. But no such effect can be accorded to them; unless it was shown that the plaintiffs were aware of his intentions; In the absence of all proof to the contrary, it must be intended that the plaintiffs were influenced in sending the goods to the defendant by his written order, addressed to one of the firm.

The question then is, wére the plaintiffs authorised by that order to make the defendant' their debtor by sending Him the articles ordered. ' Child, together with his co-plaintiffs, were commission merchants in the city of. Mobile, and in that character, could not, it is presumable, have been engaged in the business of selling goods upon his own account, and for his exclusive benefit ; so that it is a question of fact, properly determinable by the usual course of dealing, whether the letter, though addressed to him individually, might'not be regarded as1 an order which the firm wére authorized to fill.

If it was, his liability to the plaintiffs, admitting the goods have been forwarded, is unquestionable. An authority to buy goods will authorise a purchase on the credit of the principal, and even the giving of a security for the purchase money, if there exists a usage of trade to justify it.— Story on Agency, 74. And will not an order to á edmmission merchant, confer on him an authority equally extensive, if-such is the usage? See Edwards and Bonner v. Benham & Co. 2 Stew’t & P. Rep. 147.

But suppose he finds it for the interest of his correspondent to purchase his goods for cash, if the course of trade, authorises it, may he not borrow money on his credit, instead of thus purchasing the goods? These questions are merely suggested, and need not be here answered, as the case may be determined on other grounds. In order to maintain an action for goods sold and delivered, it is not necessary to prove an express contract. In general, proof of the delivery of the goods to the defendant, or his agent, and that he has used them, is prima facie evidence of a contract, without proving any specific order.

Bennett v. Henderson, 2 Starkie’s Rep. 550. And this action is sometimes maintainable, though it appears that the defendant obtained possession of the goods tortiously. 3 Taunt. Rep. 274; 6 T. Rep. 681; 2 ibid. 145; Hill v. Davis, 3 N. Hamp. Rep. 384; Gilmore v. Wilburn, 12 Pick. Rep. 120. So, if one person, without any previous authority, buys goods as the agent of another, and deliver them to him, and he receives and uses them, he will be liable to the seller for their value, unless he has paid the buyer. Kupfer v. Parish in Augusta, 12 Mass. Rep. 185.

And when goods are delivered to one person, on the credit or request of another, the undertaking of the latter to pay, is direct, and an action lies against him for goods sold. Stapp v. Anderson, 1 A. K. Marsh. Rep. 539. We have merely stated these principles to show, that in this form of action the law is very li- , beral in implying a promise to pay, where the defendant has derived a benefit. Here, if the evidence is to be accredited, the defendant has received and used the plaintiffs*goods, and they may be the losers to the extent of their value, unless, he pays them for them.

True, the defendant supposed them to belong to Child, or he would not have received-them, yet, having, used them, he must account to the plaintiffs, as ho received them without advice from any source, by whom they were sent. If the usage of trade did not authorise the plaintiffs to fill the order to Child, the defendant might have refused to receive the goods from them, or having received them under the impression, that Child was the sole consignor, immediately upon ascertaining the fact to be otherwise, he could have given notice to the plaintiffs that they would be returned.

This view shows that the County .Court erred, both in admitting the evidence of the defendant’s declarations and belief, and in the charge to the jury. The judgment is consequently reversed, and the cause remanded.