Phœnix Insurance v. Moog

SOMERVILLE, J. There are some important questions raised by the pleadings in this cause, which we proceed first to consider, before undertaking the examination of those suggested by the bill of exceptions. 1. It is provided by statute in this State, that the party against whom a judgment on demurrer is rendered may plead over as a matter of right, without waiving his privilege of assigning the judgment on demurrer as error in the appellate court, “ unless he has subsequently had the benefit secured by the demurrer upon the trial of other equivalent issues.” Code, 1876, § 3007. Where it appears, therefore, that a defendant has gotten, under his amended pleas, the full benefit of any defense which he could also have obtained under his original pleas, to which the court has sustained a demurrer, the ruling of the court, if erroneous, is error without injury, because the defendant has suffered no prejudice by it. This principle becomes important in the progress of the views which we shall see fit to take of some of the rulings of the — 300 — Circuit Court on the plaintiffs’ demurrers to the defendant’s pleas. 2. The present action is one on a policy of insurance, in which the plaintiffs sue for the value of certain goods alleged to have been lost on board of the brig Mary Allerton, while sailing between the ports of Mobile, Alabama, and Galveston, Texas. The Code prescribes a form of complaint for suits of this nature, which is found on page 704, among the schedule of forms of pleadings in civil proceedings. — Code, 1876, § 3009, p- 704, Form No. 16. The most casual observation will show, that the several counts of the complaint in the present cause comply fully with every requisite of this form, some of them being more detailed in their statements than the statutory form requires. It is manifest, therefore, that the demurrers to the complaint were properly overruled, the supposed defects suggested being mere matters Of defense to the action. 3. Many of the defendant’s pleas set up the defense of the fraudulent .conduct of the master and the crew of the vessel, and the fraud of the plaintiffs in procuring the policy, and in loading the cargo. The fifth plea, for example, makes the general averment, that “ the loss of said goods was caused by the, fraudulent and, improper conduct of the master or crew of said brig, and such as was not insured against by said defendant and the seventh plea alleges, that “ the policy which the plaintiffs obtained from the defendant was procured by fraudulent conduct and representations.” So, the averment of the fourteenth is, that “ there was fraud in the loading of the cargo,” without any statement of the facts constituting such fraud. The court sustained demurrers to these pleas, and several others of like character: and these rulings of the court are assigned as 'error by the appellant, among many others. The question raised is, whether, under our present system of pleadings as established by the Code, a defendant in a court of law can plead fraud, or other analogous defense in the nature of fraud, by general averment, without a statement of the facts constituting the fraud. There can be, in our opinion, no doubt as to what the rule of the common law was on this subject. A plea, under that system, according to the better view, was required to state the facts which constituted the alleged fraud, or it was deemed demurrable. This was decided in Giles v. Williams, 3 Ala. 316, where the form found in Chitty, which is cited as authority by appellant’s counsel, was expressly repudiated, as unsupported by authority; the court .there holding a plea insufficient, which averred that the bond sued on “ was obtained by fraud, covin and misrepresentation ” on the part of the plaintiff. This ruling was followed in Clay — 301 — v. Dennis, 3 Ala. 375, where a plea, which alleged that the note sued on was given for certain property, the sale of which was fraudulently made by the plaintiff: to the defendant, was held insufficient; Ormond, J., observing, that “ a plea alleging fraud must state the facts which constitute the fraud.” To the same effect is McKeagg v. Collehan, 13 Ala. 828, where this court held a plea to be bad, which alleged that a certain receipt, executed in satisfaction of a judgment in defendant’s favor, was “obtained by fraud in the sale of a horse” to him by the plaintiff. The vice of the plea was held to be in the statement of a legal conclusion, “ without setting out the facts from which such conclusion arises.” "We are not aware of any case where the doctrine of these decisions has been departed from, either before or since the inauguration of our present system of Code pleadings. The statute now declares, that “the plea must consist of a succinct statement of the facts relied on, in bar or abatement of the suit, and no objection can be taken thereto, if the facts are so stated that a material issue can be taken thereon.” — Code, 1876, § 2987. In Meadows v. Meadows, 73 Ala. 356, 358, we said : “Facts, and not mere inferences, arguments and deductions, are required to be alleged in pleadings under the Code, as well as at common law, although the strictness of the ancient rule has been greatly relaxed.” And again in Quarles Campbell, 72 Ala. 64, the following language was used in the discussion of this subject. Of course, all pleadings, which conform substantially to the forms prescribed by the Code, would be sufficient; and there are cases where the averments of conclusions, in the nature of mixed questions of law and fact, have been sustained by analogy.” We find no form of plea in our present Code, which, upon any principle of analogy, will justify a plea of fraud, which omits to state any matter of fact constituting such fraud. As said in Flewellen v. Crane, 58 Ala. 627, 629, — an observation holding good since as well as prior to the Code : “ Fraud is a conclusion of law from facts stated and proved. When it is pleaded, at law, or in equity, the facts out of which it is supposed to arise must be stated; a mere general averment, without such facts, is not sufficient. The court can not, on such averment, pronounce judgment.” The same in substance is reiterated in Pickett v. Pipkin, 64 Ala. 520, 523. 4. Precisely the same principle applies to averments of negligence, whether urged by way of defense, or in maintenance of an action. It is not sufficient to aver mere conclusions of law — the facts must be averred from which the conclusion of negligence is deducible. — City Council of Montgomery v. Gil — 302 — mer, 33 Ala. 116, 130; Mobile & Montgomery Railway Co. v. Crenshaw, 65 Ala. 566. Under this principle, the plaintiffs’ demurrers were properly sustained to' pleas numbered as follows — the fourth, fifth, seventh, eleventh, fourteenth, sixteenth and seventeenth. We need not discuss other grounds, upon which the demurrers to these pleas may have been correctly sustained. 5. The eighth plea was plainly defective, in failing to show the complicity of the plaintiffs, in any manner, with the alleged fraudulent misrepresentation, Non constat, it may not have been made by a perfect stranger. 6. If a policy of insurance is procured to be issued by fraudulent misrepresentation or concealment of a material fact affecting the risk assumed, the contract will, of course, be void, and no action will lie on the policy. But a fraudulent overestimate of the plaintiffs’ loss, in making the proof of loss required by the insurer, will not operate to forfeit his rights under the policy, unless the instrument itself stipulates for such forfeiture. The same rule applies here, as in suits on other contracts. The perjury, or- other fraud of the plaintiff, subsequent to the contract, does not operate retrospectively to vitiate its original validity. He may, notwithstanding, recover such damages as he may show himself entitled to by satisfactory proof. In view of this principle, the ninth and fifteenth pleas of defendant, filed to the original complaint, were defective, in failing to aver that there was a stipulation in the policy, providing for a forfeiture in the event of the assured making a fraudulent over-estimate of value in his proof of loss. The defendant had the full benefit of the fact set up in the tenth of the original pleas, under the fourth amended plea; and, waiving other objections urged, he has suffered no injury of which he can complain. — Code, 1876, § 3007; Williams v. Ivey, 37 Ala. 242. And so, we decline to consider the twelfth original plea, because the full benefit of it was obtained under the fifth amended plea;” and the eighteenth also, because the' defense presented by it, if available at all, was necessarily covered by the more general averments of the third plea, upon which issues were joined by the plaintiffs, and under which evidence was introduced raising the same questions of law and fact. 7. The fraudulent withholding, or conversion of a'part of the cargo alleged to have been shipped, without the ageucy or connivance of the plaintiffs, would be no defense to the present action, but»would only be effective to diminish the amount of the recovery pro tanto. The demurrer to the thirteenth plea was properly sustained, because of its failure to allege such agency or connivance. — 303 — 8. The question of chief importance raised by the rulings on demurrer to the amended pleas, is one relating to barratry. It is averred in the first plea, that the loss of the goods insured by defendant was caused by the willful misconduct of the master of the vessel in setting fire to it, with the design of “ defrauding the underwriters, for the benefit or advantage, not only of himself, but also of the plaintiffs.” The second plea avers substantially the same thing, with the further allegation, that the master was, at the time of his alleged criminal conduct, a fart-owner of the vessel. We have no difficulty on the point presented by the first plea, to which, we think, the plaintiffs’ demurrer was properly sustained ; the rule being settled, that an act of the master, or of his marines, if one of fraudulent misconduct, may be barratry, as said by Mr. Addison, although it was done by them with no view of benefiting themselves, “ but of securing some advantage for the ship-owners.” — 3 Add. Contr. (Amer. Ed.), § 1168, p. 226, and cases cited, note (a). On the same principle, a motive to benefit the owners of the cargo would not change the nature of the act, unless the misconduct of the barrators was perpetrated with the consent or connivance of the assured. . It was said in Brown v. Union Ins. Co. (5 Day, 1; s. c., 5 Amer. Rep. 123), that if the alleged barratrous act was unlawfxxl, “a px-etended intention of benefit to the plaintiffs will be unavailing,” and that “ the decided cases put this question beyond all doubt.” See, also, Parsons Mer. Law, 448; Wiggins v. Amory, 7 Amer. Dec. 175. 9. A question of more difficulty is that raised by the second plea. Can the master of a vessel, who is also a fart-owner, commit the act of barratry by making way with such vessel in fraud of the other owners ? Barratry may be properly defined as “ any illegal, fraudulent, or knavish conduct of the master or mariners of a ship, by which the freighters or owner are injured.”- — 1 Rapalje & Lawrence’s, Law Diet., p. 116 ; 1 Bouv. Law Dict., 232 ; 1 Phil, on Ins., § 1062. ’ It has sometimes been said to be synonymous with the terms “ villainy, knavery, cheat, malversation, trick, device, deceit or fraud ” of the master or mariners. Hood v. Nesbit (2 Dall. 137), 1 Amer. Dec. 265, 267. It covers cases of injury to the shippers of the cargo, as well as the owners of the vessel (Cook v. Commercial Ins. Co., 11 John. 40); and has often been adjudged to include losses by theft and embezzlement committed by the master or crew. — American Ins. Co. v. Bryan, 37 Amer. Dec. 278, and note, p. 285. And while it is immaterial that the master may have had in view the benefit of the owner, rather than his own, it may be considered there can be no case of barratry without the element of — 304 — fraud or criminal conduct of the master or the mariners. In Wiggins v. Amory, 7 Amer. Dec. 175 (s. c., 14 Mass. 1), Chief-Justice Parker said, that it might be taken as the settled law of England, that fraud or criminality is essential to barratry. And such now seems the settled rule also in this country. — Hood v. Nesbit, 1 Amer. Dec. 265, supra. It is thus manifest, that the act of barratry can be committed by no other person except the master or mariners, and against no one except the owner of the ship, or the freighters, who are deemed owners pro hac vice. When the master, therefore, is also the sole owner, it is everywhere conceded that he can not commit an act of barratry against himself. — Smith’s Mer. Law, 345 ; Ross v. Hunter, 4 T. R. 33. The obvious reason upon which this rule is based seems to be, that one can not commit a fraud, or other like unlawful act, upon or against himself. Upon no sound principle, therefore, can it be made to embrace the case of a mere partrowner, who very clearly can commit a fraud, cheat, or other illegal act of knavery, upon the property rights of his co-owners. The statement, however, is found in some of the old text-writers, that the master, if he be a part-owner, can not commit barratry, any more than if he were a sole owner. — 2 Arn. on Ins. 837; 1 Phil. On Ins., § 1082. The case of Wilson v. General Ins. Co., 12 Cush. 360, decided by the Supreme Court of Massachusetts, in the year 1853, aud holding to this view, was based confessedly on these old authorities; but it was admitted by Chief-Justice Shaw, that the adjudged cases confined the principle exclusively to sole owners. That learned judge, as he states in his opinion, was u not aware of any decided case directly in point,” nor did he cite any, either American or English. The well considered case of Jones v. Nicholson, 10 Exch. 28 (26 Eng. L. & Eq. 542), decided by the English Court of Exchequer in the year 1854, had not then’been promulgated. It was there held, that a master, who is part-owner, may commit barratry against the other part-owners; and this, in our opinion, announces the proper rule — one which Jias been followed since in both England and Scotland, and is approved by the best of modern text-writers in England and America. In Jones v. Nicholson, supra, it was said by Pollock, C. B.: “ Some expressions of modern authors to the contrary have been cited ; but they are, in truth, no authority whatever, since the doctrine laid down is not supported by any decided case. A master who is sole owner can not commit barratry, because, he can not commit a fraud against himself; but there is no reason why the fact of a master being a part-owner should prevent the other part-owners from insuring their interest in the ship, or the freighters from insuring their goods. If a master, being part-owner, in fraud — 305 — of the other owners, makes away with the ship, that, in my opinion, is barratry. The whole principle on which the doctrine rests supports that view.” Alderson, B., said he was of the same opinion; adding, that “if the master, being himself a part-owner, commits the barratry, that is equally a fraud upon the other part-owners. Whenever it is a fraudulent act on the part of the master, it is barratry j but it can not be a fraudulent act when he is sole owner.” Platt, B., said : “ Because the master happens to be a part-owner, how can it be said that the barratry committed by him is not a fraud against the other owners, who have separate shares in the vessel ? ” The doctrine of this case is indorsed by Mr. Addison, in his learned treatise on Contracts, in which, discussing the laws of marine insurance, he observes as follows: “ A master who is a sole owner can not commit barratry, because he can not commit a fraud against himself; but, if a master, being also part-owner, makes way with the ship in fraud of the other owners, that is barratry.” In support of this view he cites Jones v. Nicholson, supra ; 3 Add. Contr. (Amer. Ed.) § 1168, p. 227. Mr. Parsons, in his work on Marine Insurance, published in 1868, inclines to the same view, thus abandoning the opposite opinion expressed by him many years previous in his treatise on Mercantile Law. — 1 Parsons’ Marine Ins. 571; 2 Parsons’ Mer. Law, 243, note 4; Parsons’ Mer. Law, 449. As we have said, the doctrine settled in Jones v. Nioholson, supra, is, in our judgment, correct, and we adopt it as better consisting with reason, as well as being better supported by modern authority. We proceed next to discuss the rulings of the court on the points raised in the bill of exceptions. 10. The question which has been argued most elaborately by appellant’s counsel, both at the bar and in their briefs, is that involving the precise state of facts which will authorize the declarations and admissions of co-conspirators to be received in evidence against each other, and the inquiry as to what extent the conspiracy itself must first be proved aliunde. This argument has been directed chiefly to certain acts and declarations of one Henry Weil, an alleged co-conspirator with the plaintiffs in the matter of fraud charged against them, which acts and declarations were proposed to be proved by the witness Louis Cook, but were excluded by the court. The law undoubtedly is, that where two or more persons combine or associate together for the prosecution of some fraudulent or illegal purpose, any act or declaration made, by one of them, in furtherance of the common object, and forming a part of thé res gestee, may be given in evidence against the others. A just and well-settled distinction is thus preserved, — 306 — between admissions made in furtherance of a conspiracy, and admissions made after its close. One is coincident with, and explanatory of a progressing transaction, while the other is narrative only of a past transaction.' — 2 Whart. Ev. § 1206. 11. To authorize such declarations or admissions to be received, however, so as to affect co-conspirators, it is clear that certain proof must first be made aliunde, in establishment of the conspiracy itself. Nothing is more certain than the proposition, that the conspiracy can not be proved merely by the declarations. The rule is precisely analogous to that governing the admissions and declarations of agents, when offered in evidence against the principal. They can bo received only when the agency itself is prima faeie established; for, as said by Mr. Wharton, “ to permit the proving of the agency by proving the declarations of the agent, would be assuming, without proof, that which is a pre-requisite to the admissibility of the declarations.” — 2 Whart. Ev. § 1183; Street v. The State, 43 Ala. 1. The extent to which the conspiracy must first be proved, was considered by us in Me Anally' s' Case, 74 Ala. 9, 16, which, in our opinion, states the correct rule. It was there said, that in order “ to allow such testimony to go to the jury, a foundation must be laid by proof sufficient, in the opinion of the judge presiding, to establish, prima faeie, the existence of such conspiracy.” As expressed by an accurate author, in a recent treatise on the Law of Evidence, such declarations can not be received, “until the judge is satisfied that, apart from them, there are prima faeie grounds for believing in the existence of the conspiracy to which they relate.” — Stephens’ Dig. Ev., Art. 4, p. 8. In other words, if the evidence already offered aliunde in proof of the conspiracy, or tending to prove it, is sufficient, in the opinion of the presiding judge, to authorize the jury to find in favor of the fact of its existence, this makes out a prima faeie case, and lets in the declarations made by any co-conspirator during the pendency of the enterprise, and in furtherance of its objects. — Ormsby v. The People, 53 N. Y. 472; 1 Greenl. Ev. § 111. 12. In view of these principles, we are of opinion, after much deliberation on the subject, that the evidence sought to be elicited from the witness Louis Cook, taken in connection with the other facts in proof, was sufficient to establish a prima faeie ease of conspiracy between Henry Weil and the plaintiffs, and that the questions propounded were of such a character as that the exclusion of them by the court was error. One of the defenses to this action is a fraudulent conspiracy on the part of the plaintiffs to cheat the defendant by shipping a fictitious cargo, comparatively worthless in value, upon — 307 — which, by false representations, they had procured an over-insurance largely exaggerated. The evidence tended to establish the truth of this defense, and to shofvy.among' other alleged frauds, that the plaintiffs had filled a large number of barrels with river water, and insured them as whisky, or other spirituous liquors. The witness'Cook went.-to'-the plaintiffs’ store, and there had a conversation'with B.M-óog, one of the plaintiffs, about some of the barrels which were picked up on the eastern shore of Mobile Bay, and Were supposed to have come from the wreck of the-'Mary-■Allertorv-^-t’ae vessel in which plaintiffs’-goods were insured,"and- which had been wrecked a few weeks before.- Moog 'appekred-'b-o-.’manifest no interest in the matter, until he was informed -thabspme of these barrels were filled with water, whereupon-'he- consulted with his co-plaintiff, and then, asking the witriekS to-' wait at the storé for him, lef;t the store, and-went out; Th'e-witness Cook waited about an hou'r, and, discovering that Moog.did not return, he went over to the store of- one-Hood, mear by, stating, .at the time, to one Lipman Moog-, -an employee of plaintiffs, where he was going. Tery soon, one Iienr'y Weil, shown to be a brother-indaw of-the plaintiffs, and .who■'was -notpresent at the previous conversation between Cook-and Mtíóg about the barrels, went over to Hood’s store,'and called-'Cobh out. It was proposed here to show that'Wéil proceéded'-to discuss with Cook the matter of these barrels, concerning which he had been so recently talking to Moog, and to inquire whether he offered money for the barrels, or said anything abbot-destroying sneh barrels. The question is, Was Weil "prima-facid- the agent of Moog in this matter, and was'he actin'g'utfder’his authority ? How, it may be asked, did Weil'know'.where the witness Cook was, and what interest did' he' have "in negotiating for these barrels? And above all, from whom; skve ‘from* Moog alone, could he have ascertained any thing''abdut*Cop'k’s connection with, or knowledge of these barrels?; He-was’-h'ot present at the interview between Cook and Moog'ab the' store, and must have been informed as to this matter by some one. If Weil, after ascertaining Cook’s whereabouts wit-h-such facility, did in fact take up the same conversation that- was- progressing with Moog,'and which the latter had'invited-'an opportunity to reopen, and did offer to buy, or. propose to'destroy1 these articles, which might justly bé regarded 'as tokens -of ‘ criminating evidence, these facts, in our opinion, would ^authorize a jury to conclude that Weil was the :agent of Moog; sent to see Cook in furtherance of his principal’s'interests; a‘nd that he was, therefore, prima facie a co-conspirator,; doing-an act in obvious promotion of the alleged scheme, of-thd plaintiffs to defraud the insurance company. The' spoliation’' of -evidence, — 308 — damaging to a litigant’s cause, may constitute just as much of a fraud, as the manufacture of evidence that is favorable to it. 14. The exclusion of the several questions propounded by the defendant to the witness Cook was clearly erroneous. The true rule on this subject is as follows : If a question is propounded to a witness on the stand, the answer to which is prima facie relevant and legal testimony, and the court refuses to allow the witness to answer, this is error, for which a reversal will lie; for the reason, that “the injury to the party consists in the refusal of the court to permit the answer to be given, and he can do nothing more to prove the wrong done him than to show that he has asked a legal question, the answer to which, by the action of the court, was denied him.” Nailor v. Williams, 8 Wall. 107. Where no answer is given by the witness, as in this-case, this does not 2’epel the presumption of injury, provided the question itself is sufficiently definite to indicate the nature of the answer sought to be elicited, and such answer is prima facie relevant, material, and otherwise legal. — Roberts v. The State, 68 Ala. 515. In such a case, it would add little or nothing to the enlightenment of the court, for the counsel to state what is proposed to be proved by the question, because this is shown by the question itself, so far as to justify the admissibility of the answer. It is only when the question is so general in its nature, that the answer sought to be elicited may as well be prima facie irrelevant and illegal testimony, as relevant and legal, that the exclusion of the question, and the refusal of the court to allow the witness to answer it, will be regarded as free from error. It is reasonable, in this class of cases, to require the counsel to inform the court what is proposed to be proved, so that the court may see that he seeks to elicit testimony which is proper to be admitted, and not that which is improper. — Allen v. The State, 73 Ala. 23. If this is not done, it may be inferred by the court that, in view of the broad and comprehensive nature of the interrogatory, the answer of the witness might have been illegal, irrelevant, or even beneficial to the party. There should be no such presumption, however, in the first case, because the question is sufficiently narrow to preclude it, and the party has the legal right to examine the witness as to all relevant and legal matters within his knowledge. When the court denies this right — and refuses to permit its exercise — there is manifest error; and error imports the presumption of injury, unless it is clearly repelled. The adjudged cases in this State can all be harmonized, in our opinion, with this principle, although some expressions may be found which seem susceptible of a contrary construction. — Burns v. The State, 49 Ala. — 309 — 370. However this may be, the rule above announced is, in our opinion, the correct one. 15. There is another class of cases, where a question is illegal only because it may elicit improper testimony, and the court permits it to be answered against the objection of the other party. Unless the answer itself is disclosed by the bill of exceptions, no error can be imputed to the court, because the answer may have been both relevant and beneficial to the objecting party. — Nailor v. Williams, 8 Wall. 107; East Tenn. Railroad Co. v. Bayliss, 74 Ala. 150; Eagle & Phœnix Man. Co. v. Gibson, 62 Ala. 369. So, when an objection to a question is overruled by the court, and the record fails to show what answrer the witness made, if any, it has been held that the ruling of the primary court is not reviewable on, appeal. Hughes v. The State, 75 Ala. 31; Jackson v. Clopton, 66 Ala. 29. We need make no special application of these principles to the assignments of error based on the action of the court in excluding the questions propounded to the witnesses .Bishop and Rivers, as upon a new trial the questions can be readily framed so as to be brought within the rule. 16. In what we have said above, as to certain questions proposed to the witness Louis Cook, we have properly confined our observations to the first examination of this witness, as disclosed in the record. When, however, it was attempted to introduce him upon the stand a second time, another well-settled' rule applied, which has received the sanction, not only of this court, but generally of the courts everywhere. This rule is, that, while a witness may be introduced on the stand a second time, and re-examined as to matters concerning which he has been already interrogated, this is a matter of practice within the control of the trial court; and being entirely discretionary, its refusal or allowance is not reviewable by this court. — Hobbs v. The State, 75 Ala. 1; Bell v. The State, 74 Ala. 420 ; Gayle v. Bishop, 14 Ala. 552; State v. Marler, 2 Ala. 43; 1 Whart. Ev. § 574. It is a fundamental principle, that where “ any matter is left to the discretion of one judge, his discretion is not subject to be reversed or revised by another.” — 1 Grreenl. Ev. § 431. The action of the circuit judge, therefore, in declining to allow the witness Cook to be introduced upon the stand a second time during the progress of the trial, and re-examined as to precisely the same subject-matters, was the exercise of a mere discretion, not subject to our review on appeal to this court. 17. We see no objection to the testimony elicited by the plaintiffs from the witness Cleveland, as to the box of stationery alleged to have been shipped on the vessel as a part of her — 310 — insured cargo.,: This' box was not only shown to have constituted a part pf, such cargo, the’nature and value of which was an important .subject'of inquiry, bht was recovered from the wreck, and was at the time of the trial in the possession of the plaintiffs. ,. , v ... 18. The court,, iii our opinion, committed no error in excluding the evidence .as,to the canned oysters gotten from the wreck of the.vessel., We can not perceive the relevancy of the fact that the party of men .who visited the wreck threw some of these goods over-board. In itself, the circumstance had no tendency to prove the quality of the goods ; and the act being inadmissible, .the accompanying declaration explanatory of it must be excluded, as mere, hearsay. 19. As it w.as made to appear that the witness Debby Campbell was unable toread hpr deposition, when handed to her during her cross-examination by plaintiffs’ epunsel, there can be no error in the course adopted of permitting tó be read to her the portion of this ¡testimony in reference to which it was proposed to interrogate.— Wells v. The State, 74 Ala. 21; 1 Greenl. Ev. §§ 463, 465; Whart. Ev. §§ 555-6, 562. 20. The mode,of examination adopted in the attempt to im-. peach the witness. Gayle, which was to show his contradictory statements made in presence of the witness King, seems to us to be free from .all objection. The. proper predicate having been first laid, by, asking Gayle whether he had not, at a time and place specified,, made certain statements to King, and this being denied by him, or else explained in a certain manner, it was competent to, impeach him, by proof of other statements contradictory, or differing in any. material phase of signification. It is proper practice, in such cases, either to ask the impeaching witness as, to the .particular words sought to be imputed to the witness whose veracity is assailed, or else to adopt the more liberal mode of asking him to state the true conversation between the parties as it may really have occurred. In the present instance, .we think the two statements proved were sufficiently conf,ydictory to 'justify the refusal of the court to exclude them from the jury. We have examined the other assignments of error based on the admissions of evidence, and, in our opinion, they are not well taken. 21. The charge requested by the defendant was obnoxious to several objections, .which rendered its refusal free from error. It submitted to the jury the construction of the charter-party, which was a question exclusively for the determination of the court, and not of the jury. And it, moreover, authorized the jury to impute to this contract a meaning which was clearly erroneous. — 311 — The judgment of the Circuit Court must, however, be reversed for the errors to which we have above alluded, which is accordingly done, and the cause is remanded for a new trial.