72 So. 548 | Ala. | 1916
Replication 1 avers a custom of defendant to deliver telegrams beyond its free delivery limits, and in the neighborhood of plaintiff’s residence in Birmingham, without requiring prepayment of the extra charge prescribed by defendant’s rule. This replication was defective in not showing that plaintiff or her agent had knowledge of the custom averred, and that the contract was made with reference thereto; for no local usage can become part of a contract unless it was known to the parties at the time
The case of W. U. T. Co. v. Bowman, 141 Ala. 175, 37 South. 493, cited and relied upon by appellant, is clearly distinguishable from the instant case by the variant terms of the free delivery restriction there under consideration, which, it was observed, might be consistent with a custom to deliver beyond free delivery limits without prepayment of an extra charge.
Moreover, the pleadings, as they here went to the jury, did not embrace the issue of a usage in qualification of the express stipulations of the contract, and, for this reason alone, the instruction complained of would be justifiable.
We find no error in the record of which appellant can complain, and the judgment will be affirmed.
Affirmed.