
    Rives, Battle & Co. vs. Ebenezer P. Odeneal.
    R. B. & Co. sued 0. on an open account for goods sold and delivered; it was proved on the trial, that O. received and used a quantity of bagging and rope, but was not aware at the time, that the articles had been forwarded by R. B. & Co.; O. had authorized McM. & K., who had been his commission merchants, and were then indebted to him, to furnish him bagging and rope; but at the time the order to furnish the articles was received, their business as commission merchants had been discontinued, and they purchased the articles of R. B. & Co. for O., and on his credit; after the institution of the suit, a settlement was made between O. and McM. & K.; and 0. received from them a note in payment of the balance due him, there being no charge by them against him for the bagging and rope; the jury found a verdict in favor of 0.; and R. B. & Co. made a motion for a new trial, which the court overruled : held, that the facts and circumstances of the case seem fully to create an implied contract of purchase on the part of 0. sufficient to warrant and sustain the action; and the new trial should therefore have been granted.
    EkeoR from the circuit court of Lowndes county; Hon. Benjamin F. Carruthers, judge.
    This was an action of assumpsit, instituted in the circuit court of Lowndes county, to the October term, 1841, by George M. Rives, James Battle, Samuel Battle, and John A. M. Battle, copartners, doing business under the name and firm of Rives, Battle & Co., against Ebenezer P. Odeneal, for goods sold and delivered. The defendant pleaded the general issue. At the April term, 1845, the ca.-e was tried. On the trial, James F. Lowden, a witness, for the plaintiffs, proved, the amount and correctness of the account sued on, having seen the original entries upon the plaintiff’s books. He presented, as agent of plaintiffs, the account sued on, in 1841, to defendant for payment; he acknowledged having received the articles, but did not know they were shipped by plaintiffs. Witness stated that defendant still owed for the goods; and that they were furnished at the usual prices in Mobile, where plaintiffs resided at that time; witness did not live with Rives, Battle & Co. at the time of the sale; defendant admitted at the time witness presented the account, that he had no reason to doubt that the articles were furnished, by Rives, Battle & Co.; but that was his first knowledge of the fact; and if McMorris, did not settle the amount due him (on his year’s last crop,) he would not pay Rives, Battle & Co., until forced to do so.
    On cross-examination he stated, that defendant admitted receiving the articles; but made no acknowledgment of being indebted to Rives, Battle & Co.; he did not know by whom the goods were sent, having received no bill with them; he supposed they were shipped by McMorris & Knox, or Mc-Morris alone, who were indebted to him a balance on last year’s crop.
    Morgan McMorris, a witness for plaintiff, proved: that some time in the winter of 1839, or spring of 1840, he received a verbal order he believed, from the defendant, for bagging and rope, for the crop of 1840; that he purchased from the plaintiffs, the articles mentioned in the account, and he believed the account to be just and correct. The articles mentioned in it were shipped by plaintiffs on the Steamer, Robert Morris, & directed to the defendant at Moor’s Bluff. Witness also, forwarded, to defendant, directed to him at Nashville, Miss, a bill of the goods in question, and wrote him by the same conveyance, and attached to the bill, informing him of all the particulars connected with the shipment of bagging and rope by the plaintifls.
    On cross-examination he stated, that he ordered the goods in question by a verbal order, he believed, from the defendant. Witness was not engaged in any business in Mobile, at the time; he had been, a short time previous, engaged as a commission merchant; that McMorris & Knox had, in the year? 1840, sold some cotton for defendant; and had paid to his account all the proceeds of his cotton, except a small balance of about fifty-five dollars, which he had since settled, in the winter of 1842, by note, payable in the spring of 1842; the note has never been presented for payment, nor was their any allusion, at the time of the settlement with defendant, to the account of plaintiffs ; the settlement was not intended, by either witness or defendant, to have any connection with plaintiffs’ account. The goods in question, were to be furnished on a credit as usual; defendant gave him no instructions to buy for cash.
    John C. Canfield, a witness for plaintiffs, testified, that Morgan McMorris ordered of the plaintiffs the articles enumerated in the account; that they were forwarded by boat Robert Morris, marked E. P. 0. Moor’s Bluff, on 21st day of May, 1840, as per bill of lading, produced in court. The articles were charged to defendant, at the time of shipment. Witness was at that time and is now the book-keeper, in the employment of plaintiffs. He stated that the prices charged in the account were usual and fair, according to the Mobile market at that time.
    On cross-examination he said, that the order by McMorris for the articles was verbal; they were charged to defendant; witness was not acquainted with the pecuniary condition of McMorris & Knox.
    This was all the testimony given in the cause. The jury found a verdict for defendant. The plaintiffs made a motion for a new trial, which was overruled, to which they filed a bill of exceptions, setting out the evidence. And removed the case to this court, by writ of error.
    
      TV. P. and J. F. Jack, for plaintiffs in error.
    The finding of the jury, in this case, was manifestly against law, and the proof adduced upon the trial. Odeneal, having used the goods of plaintiffs with their consent, was under an implied obligation to pay for them.
    It does not weaken this obligation, to say, they were received under a false supposition that they were furnished by McMorris & Knox. If it were shown that defendant had ever paid these parties, the argument might assume a show of plausibility ; but there is. no such pretence. This false surmise cannot be made the pretext by which to evade a legal liability. The bagging and rope was furnished in compliance with a “ verbal order” from Odeneal, to McMorris; but there was no contract or understanding, that they were to be paid for by any balance due from the former to the latter.
    It appears that this balance was settled in 1842. If Odeneal intended it to pay for his bagging and rope, why did he receive the note 1 This single transaction gives the proper clue to this case, and shows that defendant did not believe himself indebted for these articles to McMorris & Knox.
    But was not McMorris, acting under the “verbal orders” of defendant to purchase these articles “on credit,” his lawful agent, having a perfect right to have them charged to his account, at the house of Rives, Battle & Co. Í
    
    Odeneal acknowledges the reception and use of the property of Rives, Battle & Co.; the evidence shows that he has received, by note, the full balance against McMorris & Knox; and that he has not paid one cent for this property.
    Do not the weightiest objections, both of law and conscience, rest upon him, to satisfy this demand %
    
    The jury failing to enforce them, it was the duty of the court to set aside their verdict.
    
      Harris and Harrison, for defendant in error.
    In an action for goods sold and delivered, a contract of sale between plaintiff and defendant must be proved. 1 Saund. PI. and Ev. 635.
    A request by defendant is material to be proved. 2 Greenlf. Ev. 83, sect. 107.
    Labor voluntarily bestowed by plaintiff for defendant, without his privity or consent, however meritorious, or beneficial, will not support an action. 20 Johns. R. 28.
    Advances of money by one for another, without an express or implied authority from the latter, will not bind him to pay. .6 Cowen, 588; lb. 619, 620; 6 Cowen, 477.
    The benefit received is not the test. It must be requested or agreed to be received. Every man is permitted to regulate his own affairs, in his own way; and he is the best judge, when and where he will have services performed, or money advanced for him. 5 Cowen, 520.
    The defence set up, was that the plaintiffs proved no such contract as that alleged in their declaration; that there was no request from defendant to plaintiffs, no privity between the parties.
    The facts of the case were fairly left to the jury, and their verdict will not be disturbed, unless a great preponderance of testimony appears against it. Ellzey et al. v. Stone, 5 S. & M. 21.
    We admit that trover and trespass may be waived where a wrong-doer has converted the property into money. 1 S. & M. 46. But this is not a case of that description. No trespass has been committed, no wrongful conversion has taken place. Plaintiffs parted with their goods voluntarily and at the instance and request of McMorris, and they must look to him for their money. Nor have the goods been converted into money. The action is not for money had and received, but upon an alleged contract of sale.
    As to what has been said by plaintiffs’ counsel, about “conscience,” we reply by claiming an appeal to the ecclesiastical courts. This court enforces legal and not moral obligations. A question of ethics cannot be entertained here.
   Mr. Justice Thachek.

delivered the opinion of the court.

Rives, Battle & Co. instituted their action of assumpsit against Odeneal, for goods sold and delivered. The evidence disclosed that defendant received and used a quantity of bagging and rope, but that at the time he was not aware that the articles had been forwarded by the plaintiffs. It was also disclosed that the defendant had authorized McMorris, of the firm of McMorris & Knox, to furnish him a quantity of bagging and rope; and it appeared that McMorris & Knox, who have been his commission merchants, were indebted in some balance to the defendant, but at the time of the order to furnish the articles their business as commission merchants had been discontinued. McMorris purchased the articles of Rives, Battle & Co. for the defendant, and upon his credit with that firm. Since the institution of the suit, a settlement was made between Odeneal and McMorris & Knox, and Odeneal received payment of the balance due him from them by the promissory note of McMorris.

The circumstance of the receipt and use of the bagging and rope by Odeneal, it having been purchased by his order, in connection with the circumstances that there was no charge against him for the articles by McMorris & Knox at the time, and no claim set up by them at the period of the settlement, seem fully to create an implied contract of purchase on the part of Odeneal, sufficient to warrant and sustain the action. We think the case is worthy of a new trial.

Judgment reversed and new trial awarded.  