Ray v. Porter

BYRD, J. 1. The case of Gindrat et al. v. The Mechanic's Bank of Augusta, 7 Ala. 324, has for so long a time settled» without being questioned, the rule of commercial law applicable to this case, that we do not feel authorized in reviewing the authorities upon and disturbing it. We recognize that case as establishing the doctrine that it is permissible to prove a custom or usage at a particular place where the parties to a bill reside, as to the mode of giving notice of the protest of the non-payment of the bill. The only distinction in principle we can draw between that case and the cases of Barlow v. Lambert, 28 Ala. 704, and of Boone & Co. v. Steamer Belfast, in maunseript, decided at the January term, 1867, is, that it is allowable to prove a custom as to the mode of doing a particular act, such as making a delivery of goods by a common carrier at a particular place, when the contract is silent as to the mode of delivery, or of giving notice where it is necessary to fix a liability or discharge it; but, it is not allowable to prove a custom which dispenses with a positive rule of law which requires a delivery or notice, to fix the liability of parties, or to discharge them. I do not say that this distinction is one of universal application. It may be only tolerated in those branches of the law which are founded on usages and customs, and which are ever changing to suit the constantly varying necessities and circumstances of trade and commerce. Besides, when the Code adopted the commercial law as applicable to certain contracts and their incidents, we must presume that the legislature intended that the rules and principles of that law, as settled by this court, were to be taken as the exposition thereof. Hence, we arrive at the conclusion that the evidence excluded by the court below was admissible. The sufficiency of the evidence to establish a custom which the law recognizes as valid, is not raised on the record. The evidence excluded was admissible, and the judgment of non-suit must be set aside, and the cause remanded for further proceedings.