ity of a custom that it should be universally acquiesced in; for this would be to annul all customs as to those who are unwilling to abide by them. Instead of having the force of law, and being of general obligation, they would depend for their operation upon the gratuitous assent of every person against whom they were invoked. It is enough if a custom be " general and uni

form."

In respect to the necessity of making Thomas Holland a joint plaintiff, we think, that although it would have been competent to join him, it was not indispensable to do so. The evidence shows, that in the business of the cotton pickery, he was merely a dormant partner, and the law is well settled, that in such a case he is an allowable, but not an essential party: See Monroe v. Ezzell, 11 Ala. 603, at the last term. This view disposes of the case as presented by the record. But as it would doubtless be more satisfactory to the parties, and to prevent any misapprehension, we would remark, that looking to all the facts recited in the bill of exceptions, they fall altogether short of establishing a custom, such as that of which the plaintiff's right to recover is predicated. It is apparent from an examination of the evidence that it is contradictory, showing nothing like a certain and uniform usage, which is essential to its validity: Price v. White, 9 Ala. 563; Rapp v. Palmer, 3 Watts, 178; Chastain v. Bowman, 1 Hill (S. C.) 270; Trott v. Wood, 1 Gall. 443; Buck v. Grimshaw, 1 Edw. Ch. 147; Consequa v. Willings, Pet. C. C. 230; Parrot v. Thacher, 9 Pick. 426. It is certainly true, that usages among merchants should be very sparingly adopted as rules of law, as they are often founded in mere mistake, and still more often in the want of enlarged and comprehensive views of the full bearing of principles: Donnell v. Columbian Ins. Co., 2 Sumn. 377; and we would add, are not unfrequently intended to advance some particular interest at the expense of a large class of the community. Even where well intended, they are sometimes set up as a means of protecting selfishness and dishonesty.

But the entire evidence, and its legal effect, is not submitted to our judgment. We have only to decide the questions raised upon the record for revision-this duty has been performed, and we have only to declare that the judgment is affirmed.

CUSTOM: See Halverson v. Cole, 40 Am. Dec. 603; Bodfish v. Fox, 39 Id. 611, note 614, where other cases are collected.

BRADFORD v. MARBURY.

[12 ALABAMA, 520.]

CHARGE TO JURY CAN NOT BE CONSIDERED ABSTRACT, when there is any evidence before them to warrant its propositions.

WHERE SELLER OF GOODS GIVES CREDIT TO BUYER, until the latter shall be able to ship them to a certain place and receive returns, he can not maintain an action for the price thereof, until sufficient time has elapsed for the returns to be received; but a mere gratuitous extension of delay, made after the contract was otherwise complete, will not affect the seller's right to sue.

IF, ON SALE, CREDIT IS STIPULATED FOR, THERE CAN BE NO RECOVERY except for the sum due according to the contract, when the suit is commenced.

DELIVERY TO CARRIER OR WAREHOUSEMAN NAMED OR INDICATED BY BUYER, is a delivery to the buyer, and the goods so delivered will be at the risk of the buyer, without notice of delivery, unless the parties contract that notice of delivery shall be given.

DELIVERY TO WAREHOUSEMAN MAY BE COMPLETE DELIVERY TO BUYER,

although the seller takes the receipts in his own name, unless his intention in so taking them was to preserve the right of property in himself. TITLE TO PROPERTY DELIVERED TO WAREHOUSEMAN INDICATED BY BUYER, vests in him, though the warehouseman may have a lien on it for his charges.

ERROR to the circuit court of Coosa. Assumpsit for goods sold and delivered. At the trial, the first witness testified that the defendant offered a certain price to the plaintiff, for all the cotton the latter would pick, up to the twenty-fifth of December following; that the plaintiff assented; that defendant told plaintiff to deliver it to a certain warehouseman; that nothing was said about the time of payment or of the delivery. The cotton in question was all picked before Christmas, and delivered at the warehouse before the nineteenth of January. The warehouse receipts were made out in the plaintiff's name, came to his hands, and were never received by the defendant. The warehouse, and all the cotton delivered there by the plaintiff, were destroyed by fire on the twenty-ninth of January. The other facts, and the testimony given by other witnesses, are sufficiently indicated in the opinion.

Morris and Martin, for the plaintiffs in error.

Storrs and Elmore, contra.

By Court, GOLDTHWAITE, J. The defendant does not question the correctness of the general instruction, on which the cause was submitted to the jury, so far as that goes, but insists, he was

entitled, from the proof, to make the several points presented by his requests for distinct charges. To this the plaintiff answers, without admitting the correctness of the propositions advanced, that most, if not all of these, were properly refused, on the ground that they are abstract, in other terms, not called for by the evidence. If the case rested alone on the testimony of the first witness, there would be no room for discussion, as that makes out a naked sale, of which at most there would be a full performance on the part of the plaintiff by delivery; but the defendant insists this contract was essentially modified by the conversation between the parties on the twenty-seventh of December, as well as that the admissions of the plaintiff indicate that the sale itself was made with a stipulation, that credit should be given for a portion of the price, until returns were or could be received from Liverpool. Whether the contract for sale was one for a credit, or whether it was modified in any material manner by the conversation of which evidence was given, or whether the plaintiff assented to the modifications which it is insisted tho defendant proposed as the equivalent for the delay in the delivery of the cotton, or whether, in point of fact, there was any delay, or whether this conversation applied to the whole of the cotton, or only the portion then not delivered, were all questions for the consideration and determination of the jury. For the court to undertake to pronounce that none, or which, or that any of these matters, were or were not established, was a judgment upon the weight of the evidence, which it was incompetent to give. It is at all times a question of much delicacy, to refuse a legal charge on the ground that it is not supported by evidence, but to do so when there is any evidence before the jury to warrant the proposition, is clearly erroneous: Wiswall v. Ross, 4 Port. 321; Harrell v. Floyd, 3 Ala. 16. We think the objections to the charges, on account of their being abstract, can not be sustained.

2. We shall now proceed to examine the several legal propositions which the different requests for instruction contain, but in doing this, shall endeavor to group them into classes. The first and eighth are sufficiently similar to be considered together. If the contract was to allow the defendant a credit, for all but one thousand dollars of the price, until returns for the cotton could be had from Liverpool, it can not, we think, be disputed that this must be construed as a stipulation to wait until, by the ordinary course of trade, a sufficient time had elapsed for a shipment and returns. And in this light the requests seem to con

sider it. If the admissions of the plaintiff connected themselves with the contract of sale, so that the credit formed a part of it, then there can be little question that a sufficient time had not elapsed between the delivery of the cotton and the fourteenth of March, 1845 (at which time the suit was instituted), for it to have been shipped and returns made. If, on the other hand, it was a gratuitous extension of delay, made after the contract was otherwise complete, there can be no pretense to say the suit is affected by it: Ross on Vend. 59; Stedman v. Gooch, 1 Esp. 5. Which of these, or what was the proper inference from the proof, as we have before said, was determinable by the jury.

3. But the plaintiff contends that the denial by the defendant, that he was in any way liable to pay for the cotton after its destruction, relieved him from the necessity of waiting until the expiration of the credit, if one, in point of fact, was a part of the contract, to commence a suit to ascertain his rights. It must be confessed this proposition is deserving of great consideration. If it was conceded, that every seller upon credit is justly entitled to demand from the buyer an acceptance, which is the general course of trade in some commercial places: Ross on Vend. 53; or at least a sale note, or other memorandum in writing, ascertaining the terms of the contract, it seems well settled in England, and in the courts of the union, that a neglect or refusal to do so, will not entitle the seller to an immediate action for goods sold and delivered, though it seems he may do so on the special contract: Mussen v. Price, 4 East, 147; Dutton v. Solomonson, 3 Bos. & Pul. 582; Ferguson v. Carrington, 9 Barn. & Cress. 59; Thompson v. Morris, 2 Murph. 248; Allen v. Ford, 19 Pick. 217. There is a class of decisions which hold, that where the buyer has obtained goods upon a credit by fraudulent representation that paper given for them is good, which turns out to be otherwise, that then the contract may be repudiated, and a new one implied to pay at once for the goods: Man. & Mechanics' Bank v. Gore, 15 Mass. 79 [8 Am. Dec. 83]; Willson v. Foree, 6 Johns. 110 [5 Am. Dec. 195]. So it has been held, when the buyer obtained possession of the goods, where the sale was on condition to give security, and he afterwards refused to give it, the seller might treat the sale as absolute, and sue immediately: Corlies v. Gardner, 2 Hall, 345. It should be remarked, however, that this last decision seems in direct conflict with Allen v. Ford, before cited, and many of the English decisions, unless there is a distinction between the refusal, and a neglect to give the security. The reason of the decisions

is said to be, that the seller, by bringing the action for goods sold, etc., considers the contract of sale as existing, and that the law will not imply a contract where the parties have expressed their own terms: Strutt v. Smith, 1 Cromp. M. & R. 312; S. C., 4 Tyrw. 1019. Assuming, however, the decision in Corlies v. Gardner, as declaring the true rule, and assimilating the refusal to give the security contracted for to a case of fraud, it will be evident this case is not within the principle. If the mere denial of liability will authorize a suit before the maturity of the credit, it would bring every case of disputed contract at once to an issue, independent of the time fixed by the parties for its performance. We are not prepared to say that such a rule would be a bad one, but it is certain it has no sanction in authority. We are, then, constrained to say, that if a credit was stipulated for, there could be no recovery except for the sum due according to the contract when the suit was commenced. In our judgment, there was no valid reason to refuse the charges to which this paragraph has reference.

4. The ninth request asserts the proposition, that the omission of the plaintiff to reply to the remark of the defendant, that timely notice, etc., must be given him of the delivery of the cotton, is to be construed as the plaintiff's assent to this as a condition. We think this can not be sustained: though we are not prepared to say this must be considered as an assent, it is possible the jury might so consider it. It may be, however, that the plaintiff omitted to press his request further for delay, from the conviction it would be unnecessary, as only thirty bales were then undelivered. The objection to the request is, that the evidence bearing on this point is too indefinite and inconclusive to warrant the court in saying that one thing or another was proved by it. It is quite possible the whole of the cotton was delivered within the time contemplated by the parties when the contract was made, and if so, the just inference would be, that the proposition for delay was abandoned, and it might be otherwise if it was not so delivered. Nor is the hypothesis improbable, that neither party expected any consequences to flow from this conversation, unless there was a delay in the delivery, and then only as to the matter of storage.

5. The second, third, fifth, and sixth requests are predicated on the assumption that notice of the delivery of the cotton was essential to charge the plaintiff, either under the contract as made in the first instance, or if modified by the conversation between the parties on the twenty-seventh of December, so as to