In Child, Hibbler & Pearson v. Wofford, 3 Ala. Rep. 564, the defendant addressed a letter to the plaintiff, Child, at the city of Mobile, requesting the latter to send him goods according to a bill annexed. C. and his co-plaintiffs were doing business as partners and commission merchants in that city, and not otherwise, and the defendant resided about two hundred miles in the interior. The plaintiffs sent the goods, but without a bill of lading or letter; the defendant, as well as his agent who received them, supposed they were sent by C. individually, and that ■to him alone the defendant was accountable : Held, that the plaintiffs were entitled to recover in an action for goods sold and delivered. This court said, that Child and his co-partners being commission merchants, the former could not be presumed to have been engaged in the business of selling goods upon his own account, and for his own exclusive benfit, and that it was a fact determinable by the usual course of dealing, whether the letter might not be regarded as an order which the firm were authorized to fill. Although the defendant received the goods supposing them to belong to C, yet, having used them, he must account to the plaintiffs; as he received them without advice from any source, by *382whom they were sent. “ If the usage of trade did not authorize 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.
In the case at bar, the defendant addressed a letter to Nance, requesting certain articles to be sent him from Mobile to Selma. Nance had previously lived in Selma, was indebted to the defendant some two or three hundred dollars, but at the time the order was given was insolvent, and employed as a book-keeper by the plaintiffs, who were wholesale dealers in groceries in' the city of Mobile. It was proved on the trial, that clerks were in the habit of receiving orders from their friends, which they filled and had them charged to their friends, on the books of the house from which they purchased. Further, that Nance had turned over the defendant’s order to the proper clerk in the plaintiff’s establishment^ who forwarded the goods as requested.
Now, although the letter, unassisted by proof, indicates a request to Nance individually, to furnish the articles desired, yet it was certainly competent for the plaintiffs to show Nance’s connection with their house, and the usual course of business in reference to such orders as that contained in the defendant’s letter. Evidence of this character was adduced, and should have been referred to the jury to determine the nature of the authority to Nance, and the question of the defendant’s liability to the plaintiffs. The case cited is directly in point. By the charge to the jury, this evidence was virtually excluded — the letter, unaided by any thing extrinsic, was alone looked to, and the inquiries of the jury entirely foreclosed by the instruction, that it did not authorize Nance to purchase the goods ordered, of the plaintiffs, so as to make the defendant liable to them for their payment.
The judgment is consequently reversed, and the cause remanded.