Nashville, Chattanooga & St. Louis Railway v. Cody , 137 Ala. 597 ( 1902 )

DOWDELL, J.

What was said in .the case of N., C. & St. L. R. Co. v. Parker & Co., 123 Ala. 683, and here relied on bv appellant for authority as; to- a variance between the complaint and the proof, where the complaint, was in Code form on a bill of lading, and the bill introduced in evidence contained special stipulations, was reconsidered and departed from by this court in the later case of L. & N. R. R. Co. v. Landers, 135 Ala. 504; 33 So. Rep. 482.

Tt is quite apparent from the record, that by the written agreement entered into- by counsel for plaintiff and defendant after the conclusion o-f the evidence upon the trial for the court to charge the jury affirmatively for the plaintiff or defendant “as the court may deem proper under the law and the evidence, and enter on the record, jury and verdict in accordánce with the charge of the court as given,” it wa-s not intended by counsel to put, the trial court in error on the ground of a. conflict in the evidence. There was a direct and palpable contradiction in the testimony as- to the delivery of tlm gomia sued for, which would have made it error to give the eral charge in writing at the request of either mrfy. The agreement entered into was a waiver of any right ■to except because of a conflict arising out of the evidence. It was in effect an agreement for the court to be substituted for the jury as to a finding on the facts and to render its judgment accordingly.

•Counsel for appellant in argument admits that the case was virtually submitted to the court without a jury. We find no error in the record and the judgment will be affirmed.

Affirmed.