Ledlow v. Becton , 36 Ala. 596 ( 1860 )

R. W. WALKER, J.

The contract- in this case was not within the statute of frauds, because there was no undertaking to answer for the debt or default of another. It is not pretended that the estate was liable for the goods sold ; and a promise cannot be collateral, unless there be some one who owes the debt directly. — Sanford v. Howard, 29 Ala. 691; 2 Pars. Contr. 301. It is well settled, that where one assumes to act as agent for another, without having authority for that purpose, he will be personally responsible to the person with whom he deals— Story on Ag. § 264; Lazarus v. Shearer, 2 Ala. 725; Howard v. Humes, 9 Ala. 661. It is said, however,-that this principle has no application to this case, for the reason that the defendant did no act which could have led the plaintiff to suppose that she was the agent of, or had authority to bind the estate; and that from the circumstances, as disclosed by th'e recoi’d, the plaintiff must have known at the time that the defendant was not such agent. — Story on Ag. § 265. We may admit that this is so; still we do not perceive that the concession can aid the appellant. If goods are delivered to A, by the direction, and on the credit ofB, and under his promise (made without authority) that C will pay for them, B is certainly liable if C refuses to pay, although the party selling the goods may have known that B had no authority to bind C. Whether the express refusal of p to pay would be necessary to perfect the liability ofB, it is not necessary to determine. If the facts were as supposed in the •charge, the goods were furnished to Sheridan, by the direction, and on the credit of the defendant, under a promise by her that the estate would pay or be good for the same. It appears to have been an undisputed fact in the case, that the account had been presented to the administrator of the estate, and that he had refused to pay it. On the hypothesis thq,t the jury found the facts to be as supposed in the charge, the case falls directly within the principle above stated, and the liability of the defendant is clear. The mere fact that the goods were charged to the estate, is not conclusive evidence that they were sold on the credit of the estate. The court properly left it to the jury to determine, from all the circumstances, whether the credit was or was not given to the defendant. — Scott v. Myatt & Moore, 24 Ala. p. 493.

Judgment affirmed.