Petty v. Gayle , 25 Ala. 472 ( 1854 )

GOLBTHWAITE, J. —

A.s to the contract itself, the only difference between the witnesses who were examined was, as to the length of time ■ of the hiring — whether it was for one month, or four months; but this is entirely an immaterial matter, as all the witnesses agree that the slave did not work one month. Whether the hiring was for one month, or four months, it was an entire contract, and must be governed by the rules of law applicable io that class of agreemenis. Neither is there any disagreement- between the witnesses as to the fact, that, when a contract is made for the hire of a slave by the month, it means in Mobile, where this contract was made, that twenty-six days’ work is to be done. Thus explained by the evidence, the contract, if for the shorter term, as testified to on the part of the plaintiff below, was, in legal effect, tbe same as if it had contained an express stipulation on the part of Gayle that the slave should work twenty-six days for Petty ; and upon that contract, the latter could not have been compelled to pay anything, if the slave did not work the specified number of days; and as there is no room for doubt upon that point, the judgment became a question of law upon the facts, and should have been for the defendant.

We have said nothing as to the evidence of a usage in Mobile to pay pro rata in contracts of hire, where the slave fails to work the full time agreed on, for the reason that, if proved, it could not be recognized. A particular usage may be given in evidence to influence the construction of a contract, or to explain the sense in which words or terms are used; but when the contract is established, and is not governed by the commercial law, it is not allowable to change its character, and attach to it conditions in opposition to the established rules of law. — West v. Ball, 12 Ala. 340.

The ruling of the court was, in effect, that a partial performance of an entire contract would entitle the party to a pro rata compensation; this was error. — Perry v. Hewlett, 5 Port. 318.

The judgment must be reversed, and the cause remanded.