| Ala. | Jun 15, 1854
-1. The court properly admitted Brewer to testify. He swears that he has no interest, and can be neither gainer nor loser by the result of this case; and Fowler, his confidential clerk, sustains him as to an entire absence of any interest. Besides this, he was examined by consent of defendant’s counsel, which consent the court required should be given., or the cause should stand continued, being satisfied that the plaintiff was taken on surprise by the statement inserted in the deposition of Hierne that he was a partner with the plaintiff. It was discretionary with the court to impose the terms it did, and we think the discretion was very properly exercised. No court ought to suffer the rights of parties to be swept away by such inadvertencies of commissioners, when they are clearly shown to exist.
2. The plaintiffs having declined to read the deposition of Hierne, the defendant road the same to the jury ; and the court charged, that by reading it to the jury, Jewell had made it his own testimony. What are we to understand, in legal parlance, by testimony belonging to a suitor ? Clearly that it pertains to him who introduces it. The appellant in this case introduced it, while the opposite side refused to do so, and he thus made it his testimony, — read the whole of it without objection. After this, it does not lie with him to say it is illegal or incompetent. “ Our conclusion,” says the court, in Hallett & Walker v. O’Brien, 1 Ala. R. 589, “ is, thatwhere a paper or deposition is read as evidence to the jury, the party using it thus admits it to be proper evidence,” &c.
3. The charge of the court assumes that there was no evidence of custom before the jury. If there was such evidence, then the charge is erroneous, as it should have been left to the jury to determine upon the conflicting proof whether the custom was sufficiently made out. What is the proof upon the subject of a custom contrary to the rule of law which obtains in the absence of it? The only evidence in this record is
It appears that the cotton was shipped to New York, and a bill was drawn by the appellant upon the consignees, payable, we must presume, at the place of business of the latter, namely, in New York. It is evident, then, that the transaction, as respects the sale of the cotton to meet the bill, is to be governed by the law of the place where it is to be carried out and executed. The proof of a custom, made by the witness Hanna, confined it to no particular locality, and restricted it to no particular time. He says, it was the uniform custom of merchants for the holder to sell to meet the bill. He does not confine it to New York, nor to Mobile, nor any other particular place, but it is general — the uniform custom of merchants ; that is, it is invariable, the one mode in which the transaction is performed. What is this but proof of the law merchant as applicable to this bill and shipment ? This is but a system of customs, acknowledged and taken notice of by merchants and commercial nations; and those customs constitute a part of the general law of the land, — hence their existence will be judicially taken notice of by the courts, and cannot be proved by'witnesses. — Bouv. Law Die., title “Law Merchant.” The court, therefore, very properly held that this was no proof of a custom, as it could not be regarded, tending as it did to establish the law merchant to be otherwise than it really existed, and not a particular usage or custom.
Although, as an abstract proposition of law, the charge, that a custom could not be proved where the witnesses contradicted each other, is erroneous ; still it could not possibly have injuriously affected the appellant, when applied to the evidence in the bill of exceptions ; for the court, as we have shown, properly told the jury there was no evidence of custom before them; the proof not tending to show a particular custom variant from the general law merchant, but what the law
Aside from the fact that the court might well have disregarded the proof of Hanna, as tending to establish what the law merchant was, and as showing it to be different from the rule which the court was judicially bound to know and enforce, it was so vague as to the length of time such custom had obtained, and general and indefinite as to the place of its existence, as not, prima facie, to enter into and form a part of this contract, so as to control its provisions as a particular usage of trade. In any aspect, therefore, in which it can be viewed, the charge as to the custom and the mode of proving it contains no error which could possibly have been prejudicial to the appellant. — Price v. White, 9 Ala. 563" court="Ala." date_filed="1846-01-15" href="https://app.midpage.ai/document/price-v-white-6502876?utm_source=webapp" opinion_id="6502876">9 Ala. 563, and cases cited.
The charges asked, being in conflict with the views we have expressed, were properly refused by the court.
It is true that much of the testimony of Hierne is secondary, and would have been excluded had the plaintiff offered it, if the defendant had objected to it. But the plaintiff declined offering it, and the defendant himself offered it. He cannot, therefore, object to it as illegal. If the jury believed the proof, it clearly made out the plaintiff’s case.
As to the charge upon the refusal of the plaintiffs to produce a letter spoken of by the witness Hierne, it is only necessary to say, that no inference prejudicial to a party can be drawn from the non-production of a document of this character, under these circumstances. The non-production after notice would have justified parol proof of its contents; nothing more.
There is no error in the record, and the judgment is affirmed.