
    Booker and Clarkson vs. William Tally.
    Wm. Tally, jr. having no credit at the store of Booker & Clarkson got goods of them directing them to charge the goods to his father, Wm. Tally. Booker & Clarkson did so charge them at the time: On being informed of the fact W. Tally, sen’r, said they had done right in charging the goods to him and that he would pay for them: Held, that the credit having been given in the first instance to the-father and he having subsequently recognized the authority of the son to get the goods made the debt his own, and that he was properly chargeable therewith.
    This case was tried before the Honorable W. C. Dunlap at the June term, 1840, of the Tipton circuit court. All the facts necessary to a correct understanding of the principles' involved in the decision of the cause are set forth in the opinion of the court. .
    
      Searcy, for plaintiffs in error,
    cited McClain vs. Dunn, 4 Bing. 722: 15th E. C. L. Rep. 141: Chitty on Contracts 61.
    
      J. W. Harris, for defendant in error.
    No person shall be held responsible for the debt or default of another unless the engagement so to do, be in writing; Nich. & Car. 350, act of 1801, ch. 25, sec. 1. The goods here, were delivered to W. Tally, jr., and the debt created before any promise was made to pay the debt. This is clearly within the statute of Frauds. Roberts on Frauds, 209,, 225. He understood the rule of law to be that if the person for whose use the goods are furnished is liable at all, that any promise or engagement by a third person must be in writing, otherwise it ■will be void. The proof shows that Booker & Clarkson did regard W. Tally, jr., liable, else why their anxiety about his con tern* plated removal. 4th Yer. 576.
    3. It is admitted that if Booker & Clarkson had given the credit originally to Tally, senior, and at his instance the goods were charged to him, he would be bound for the payment without writing, but the evidence does not show that W. Tally ever requested Booker & Clarkson to let his son have the goods. The proof is, that W. Tally, jr., got the goods and they were charged by Booker & Clarkson without the knowledge of W. Tally, sr. It was not until after the creation of the debt that W. Tally, sr., promised to pay it.
    3. In order to charge W. Tally, sen’r, with these goods, there must have been an authority previously given, or his son was not the agent of W. Tally, sen’r. The subsequent declarations of the father could be used only as evidence of a pre-existing agency in the son. The proof shows that no such agency in fact existed, and the subsequent declaration of the father, that Booker <fc Clarkson did right in charging the goods to him is not even admission that any authority did in fact exist at the time.
   Green, J.

delivered the opinion of the court.

This is an action of assumpsit brought by Tally against Booker & Clarkson, to which they pleaded the amount of an account for goods sold and delivered, as an offset to plaintiff’s demand.

It appeared in evidence that articles charged in the account to amount of *$60 were delivered to Wm. Tally, jr., a son of the plaintiff, over the age of 31 years. William, jr. had no credit at the store of defendants, and he procured the goods directing them tobe charged to his father, which was done at the time. Other sons and sons-in-law were in the habit of getting goods upon the plaintiff’s account.

When William, jr. was about to remove from the country, the clerk in defendants’ store called on the plaintiff and told him that some of the articles in his account had been gotten by his son William; whereupon the plaintiff said the defendants were right in charging the goods to him, and that he would pay for them. The court charged the jury that, “If the plaintiff in the first instance did not direct the defendants to charge the articles to him, he would not be bound to pay for them unless the promise to do so had been reduced to writing.”

The jury returned a verdict in favor of the plaintiff disallowing the articles charged to him, and which had been delivered to his son William. The defendants moved for a new trial which was refused, and judgment was rendered on the verdict of the jury, from which judgment this appeal in error is taken.

We think the court erred in the charge to the jury. His Honor overlooked the distinction between where the credit is given in the first instance to the party receiving the goods, and the case where no such credit is given, but the goods were delivered on account of the person sought to be charged. In the former case the charge of the court would be correct; for the delivery of the goods to A. on his own account, creates a debt against him; and any promise of B to pay for the goods, must be a promise to pay the debt of another, and consequently must be in writing. And such was the case of Matthews & Alderson vs. Milton, in 4 Yerg.. 576.

But in the case now under consideration, no credit was given to the party to whom the goods were delivered. He did not purchase them in his own name, but in the name of his father. The merchants did not know for whose use they were obtained, and the goods were delivered to William, jr. for his father, and charged in his account. In this transaction, Wm. Tally, jr. assumed to be his father’s agent in making these purchases, and he was recognized and treated as such agent by Booker & Clarkson. The only question then is, was he such agent. Unquestionably a party may recognize the authority of an agent after the completion of arfrla^r tion as well as before. All that is wanting is, to know*that thelP thority existed. And surely the admission made after the transaction, by the principal that it did, is as good evidence of the fact as if he had published the existence of such agency before hand. In this case Wm. Tally, sen’r. after the goods had been purchased, said that they had been rightfully charged to him, and that he would pay for them. He thus recognized the agency of his son William, to buy the goods and bind him by his acts. Let the judgment be reversed, and the cause be remanded for another trial.  