| Ala. | Dec 15, 1880
The statements of the evidence, in the bill of exceptions, are very meagre; but, referring the instructions given or refused to them, it does not seem to us that the point of controversy could have been, whether the contract under seal made by the parties, while it was executed in whole or in part by the plaintiff, could have been discharged by a parol executory agreement, but rather whether it was not materially altered, or modified, by a subsequent parol agreement. While it may be true, that a liability manifested by a contract in writing cannot be discharged by a mere parol executory agreement, it is equally true that a contract in writing, whether under seal or not, executory in all its terms, involving mutual duties, may, by a subsequent parol agreement, be modified, altered, or rescinded ; and no other consideration is necessary to support such agreement than the mutual assent of the parties. — 1 Brick. Dig. 394, § 233; 1 Chit. Con. (11th Am. Ed.), 154. And if, as there was evidence tending to show, it was agreed between the parties that McElhany and Keller should, for the period of eighteen months, furnish logs to the mill, in the place of defendant, the agreement, though by parol, relieved the defendant from the duty of furnishing logs during that period, and from all liability for damages because the logs were not furnished in sufficient quantity' to keep the mill running. Whether such an agreement had been made, and its effect, not as discharging in toto the written contract, but as modifying it, shifting its duties from the defendant to McElhany and Keller, was the matter of controversy. In this view of the case, there was no error in the refusal of the first instruction requested by the appellant. Given in its terms, it would have had a tendency to mislead the jury, if it had not been explained that by parol the contract could be modified. A court may properly refuse an instruction having a tendency to mislead, or requiring explanation. — 1 Brick. Dig. 339, § § 560-61.
Charges requested must be based on the evidence ; and it must affirmatively appear that the charge not only affirms a correct legal proposition, but that it is justified by the evidence, to authorize a reversal.—Wyatt v. Stewart, 34 Ala. 716" court="Ala." date_filed="1859-06-15" href="https://app.midpage.ai/document/wyatt-v-stewart-6506568?utm_source=webapp" opinion_id="6506568">34 Ala. 716. It may be true, that if the plaintiff had been willing, and in readiness to perform the contract on his part — to operate the mill as is stipulated, after' the expiration of the period during which McElhany and Keller were to furnish logs —the defendant would have been bound to performance on her part. But it was not a disputed fact, that before that period expired, the plaintiff had abandoned the mill, and never returned to it. The unwillingness and inability of the plaintiff to perform the contract on his part, relieved the defendant from the duty of performance on her part. The third charge requested was properly refused, because not justified by the evidence.
In any event, the measure of damages the plaintiff could recover was not the amount he would have received if the contract had been performed, as is asserted in the fourth charge requested. The contract involved the plaintiff in labor and expense in performance on his part, which he had not yielded, and which must have been yielded. From performance on his part, as well as performance by the defendant, it would be ascertained how much he would have received. Compensation for labor and .expense, to which he had not been subjected, it was not his right to claim. The profits he lost by the failure of the defendant to keep the contract on her part, was, in any event, the measure of recovery.—George v. C. & M. R. R. Co., 6 Ala. 234" court="Ala." date_filed="1844-01-15" href="https://app.midpage.ai/document/allen-v-best-6502158?utm_source=webapp" opinion_id="6502158">6 Ala. 234; Ramey v. Holcombe, 21 Ala. 567" court="Ala." date_filed="1852-06-15" href="https://app.midpage.ai/document/ramey-v-holcombe-6504924?utm_source=webapp" opinion_id="6504924">21 Ala. 567; Fail v. McRee, 36 Ala. 61" court="Ala." date_filed="1860-01-15" href="https://app.midpage.ai/document/fail-v-mcree-6506701?utm_source=webapp" opinion_id="6506701">36 Ala. 61.
The fifth and sixth instructions requested by the appellant were properly refused, because they disregard — treat as if not known — the fact that there was evidence tending to prove that the contract was materially modified by the subsequent agreement, changing to McElhaney and Keller the duty of furnishing logs, instead of the defendant, for the period of eighteen months, and the undisputed fact that, before that period expired, the plaintiff had abandoned tbé mill, and never returned to it. When there is a conflict of evidence, a party may request instructions adapted to the phases of the case his evidence tends to support; and the court will not
As we have said, the bill of exceptions is very meagre in its statements of the evidence — it does not purport to contain all, or the substance of the evidence. It is, of consequence, impossible for us to say, that the first and second instructions given on request of the defendant were not justified by the evidence, or that they were not abstract, working no injury to the appellant, and furnishing no ground of reversal. The remaining instructions were in accordance with the views we have already expressed.
The judgment is affirmed.