Partridge v. Forsyth

STONE, J. The bill of exceptions in this case informs us that it contains all the evidence. The evidence relied on to prove a particular custom, is that of one witness, who testified that, “ when a carpenter or master builder, in Mobile, undertook to furnish the lumber, and to do all the carpenter’s work, in building a house for a stipulated and fixed price, it was a general understanding and custom among them, that one third of the stipulated price was payable when the house was covered in, one third when the floors were all laid, and the remaining third when the whole carpenter’s work was completed.” The charge to the jury on this evidence was as follows : “ If there was a contract to build the house for so much, and you are satisfied that the custom insisted on by Forsyth exists, Forsyth is entitled to recover according to such custom.” * * * “ In order to establish a custom, you must bo satisfied that it was so known, so.general, and so uniform, that a man of ordinary prudence and discretion, engaging in such an undertaking, exercising ordinary care and circumspection, would have known of its existence.” We do not understand the counsel for the appellant as contending that there is error in the charges of the court on this evidence, if there was testimony to justify them : the argument is, that a custom of trade, or usage, cannot be established by one witness, and that hence those charges should not have been given. Customs, in derogation of the common law, are not favor [203] ites with courts. — Bla. Com. book 1, p. 78. One of their chief requisites is antiquity. — lb. 76 ; Price v. White, 9 Ala. 563. This court held, in Price v. White, supra, that to establish a usage, or custom, it must be shown to exist in point of fact, and the length of time it has existed must also be proved. Some authorities assert the doctrine, in terms more or less positive, that one witness is insufficient to prove a custom. — Halwerson v. Cole, 1 Spear’s Law Rep. 321 ; Cunningham v. Fonblanque, 6 C. & P. 44 ; Wood v. Hickok, 2 Wendell, 501. But these citations are not sustained by any satisfactory argument, and are at war with the analogies of the law. We cannot lay it down as a positive rule, that more than one witness is required to prove the existence of a custom or usage, before such usage or custom can become an element of contracts. No statute has prescribed such rule, and we are not able to perceive in the nature of the question a necessity for so radical a departure from general principles. We do not wish to be understood as saying that the testimony in this case was sufficient. That question' is not raised by the record, as no charge was asked on the sufficiency of the testimony. All we decide is, that there was some evidence of a custom before the jury. It may have been weak ; but it was the province of that body to pass on its sufficiency. We cannot pronounce this charge abstract. — Gibson v. Culver, 17 Wendell, 305. Another charge excepted to is in the following language : “ If Forsyth was prevented from the completion of the contract by the act of Partridge, or of those employed by him, Forsyth might repudiate the contract, and claim for the value of the work and labor performed by him ; or, if Forsyth was delayed in the completion of the contract, for an unreasonable time, by the act of Partridge, or of those employed by him, Forsyth might repudiate the contract, and claim for the value of the work and labor performed by him.” The testimony on which this charge was given is not very full; still, there was some testimony on the point, and it was the right of the party to have it weighed by the jury. The charge itself, viewed in connection with the evidence, under a severe criticism, might have a tendency to mislead. It was also susceptible of a construction which would leave it free from [204] error. Under our view, then, this charge admitted of two constructions, one of which presupposed unreasonable delay by Partridge in the performance of precedent obligations resting on him, and the other basing the plaintiff’s right to recover ,on the conduct of persons employed by Partridge, without defining any rule by which Partridge’s responsibility for such conduct would attach. To hold a party responsible for every act done by an employee, is certainly laying down the rule very broadly. Perhaps thejnore natural construction of the charge, considered in connection with the evidence, is, that Forsyth had the right to rescind, if Partridge, by himself or his employees, by unreasonable delay had prevented him from the completion of the contract. The rule is certainly settled, in this State, that an affirmative charge may be involved, or ambiguous, or its tendency, without explanation, may be to mislead the jury ; and yet, if no explanation or qualification be asked, it affords no ground for reversal. — Hunt v. Toulmin, 1 S. &. P. 180 ; Toulmin v. Lesesne, 2 Ala. 362 ; Rhodes v. Sherrod, 9 Ala. 71 ; Borum v. Garland, 9 Ala. 452 ; Caskey v. Haviland, 13 Ala. 320 ; Chenault v. Walker, 14 Ala. 155; The State v. Brinyea, 5 Ala. 244; Kenan v. Holloway, 16 Ala. 61. And it is also settled, that it is not error to refuse such charge. — Ross v. Ross, 20 Ala. 105 ; Swallow v. The State, 22 Ala. 20 ; Rolston v. Langdon, 26 Ala. 664; Godbold v. Blair, 27 Ala. 592 ; Boullemet v. The State, 28 Ala. Another charge was in the following words : “ Suppose there was a contract; if there was a rescission of the contract by the parties, Forsyth is entitled to recover for the value of his work and materials.” This charge has no evidence to support it, and is therefore abstract. — Hollinger v. Smith, 4 Ala. 367 ; McGehee v. Powell, 8 Ala. 828 ; Milton v. Rowland, 11 Ala. 733. To justify a reversal for a charge which asserts a correct legal proposition, simply because it is abstract, we must be reasonably convinced that such abstract charge, “ considered in connection with the evidence,” must have misled the jury. — Sims v. Sims, 8 Porter, 449; Towns v. Riddle, 2 Ala. 694. Are we reasonably convinced that the above charge must have misled the jury ? Two phases of this case are presented above, on which we have seen that the [205] jury might bave found the verdict they did, notwithstanding there may have been a contract to furnish materials and do the wood work for a specified price. There is still another view which might have been taken of this evidence. If the agreement of the parties was, that the work should be completed before any compensation was demandable, then it was what the law denominates an entire contract; and the house being destroyed before its completion, Forsyth could recover nothing. — Drake v. Goree, 22 Ala, 409 ; Brumby v. Smith, 3 Ala. 123 ; Chi tty on Contracts, (American ed.) 494. The evidence shows that Partridge, during the progress of the work, paid $500 to Forsyth, and made application to an insurance office to have the building insured against loss by fire. These were, at least, circumstances rebutting, to some extent, the idea that the contract was entire, and tending to show that the building was not at the entire risk of Forsyth. From them the jury may have inferred that Forsyth was entitled to be paid, in whole or in part, before the completion of the work. If such was the contract, he was entitled to recover the installments which had matured, or the pro-rata value of the materials and work, as the testimony should show the contract to be. — Davis v. Preston, 6 Ala. 83 ; Cunningham v. Morrell, 10 Johns. 203 ; Gillett v. Mawman, 1 Taunton, 137 ; Menetone v. Athawes, 3 Burr. 1592 ; Chitty on Contracts, 494. There being, then, testimony in the case on which the jury could have found the verdict they did find, with the above abstract charge stricken out, and no charge being asked raising the ¡¡question of the sufficiency of the evidence, we cannot say we “ are reasonably convinced that the jury must have been misled by the charge of the court”; and the result is, that the judgment of the city court must be affirmed.