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 *696furnish 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.