Langford v. Cummings , 4 Ala. 46 ( 1842 )

GOLDTHWAITE, J.

First—We think we are not aüthór-ized' to infer that the witness was permitted to give his impression as evidence to the jury. It is clear the plaintiff endeavored to show by his cross examination that there was no foundation for such an impression. In addition to the cross examination, it would have been proper for the plaintiff to have asked instructions from the court to the jury, that their verdict ought not to be founded on the belief of the witness. No exception was made to the evidence, if it was so considered, nor any charge asked upon it. Consequently there is no question about it raised on the record. [Toulmin v. Austin, 5 S. and P. 410,]

Second — The motion to exclude such of the evidence as: went to show that the verbal agreement was made after that in writing, could have been allowed only upon the reason that the contract evidenced by the receipt could not have been modified or changed by a subsequent verbal agreement. We do not wish to be understood that, if the proof that this agreement was subsequent, Was nothing more than the belief of the witness, that then it might not have been excluded, but such was-not the request; the prayer, was: to- exclude the evidence, and it was all of such a nature as to warrant the conclusion that the agreement to forward the coat by a particular' boat,- was' the last conversation between the parties;

It is insisted, however, that the receipt was an express contract to deliver the coat to the plaintiff at Coffeeville, and that this contract could not be modified by any subsequent verbal agreement. We cannot yield our assent to this proposition. The mode of delivery was a matter entirely for the benefit of the plaintiff, and an acceptance by him in a different manner would be a discharge to the defendants. When, therefore, the plaintiff consented that the coat should be delivered to the Captain of the steamboat, the delivery, if it was subsequently made, was, in effect, a delivery to the .plaintiff himself. The case of Cuff v. Penn, [1 M. and S. 31,] is similar in principle to this, and is a sufficient authority to shew that a written contract, fixing a stated period for its performance,may be extend^ed by parol; and, if so, there is no reason why the place performance may not also be changed in.the same manner.

3. The charge with respect to the custom seems to have been asked without any foundation for it, growing out of the evidence. It is stated that the custom was proved; now this statement is incorrect if it was only shown to be the custom of one boat. There is no manner in which this request can be considered which relieves it from the character of a mere abstraction, which the court was not bound to respond to in any manner.

4. We are not called on to determine whether the written contract imposed the risk upon the defendants of a delivery at , Coffeeville,-because the County Court conceded such to be the law of the contract, and it very distinctly put the case to the jury upon the fact whether a subsequent verbal agreement was made, by which the coat was to be delivered to Capt. La Rock. The charge of the Court left the jury to consider whether the coat came to his hands, and we are unable to perceive any error in the judgment.

Let the judgment be affirmed.