Cole Motor Car Co. v. Tebault

SOMERVILLE;- J. The only questions- presented'by the assignments of error are upon defendant’s exception to a portion of the oral charge to the jury, and the refusal of the affirmative charge for defendant as to -the fourth count of the complaint. (1) A prevailing usagé of trade, however general, cannot be presumed to have been in the contemplation of contracting parties so as to control or vary the ordinary legal implications of their agreement, unless it is actually known to them, or unless it has prevailed so long, that their knowledge of it may be reasonably presumed.—Byrd v. Beall, 150 Ala. 122, 43 South. 749, 124 Am. St. Rep. 60; C. A. Ins. Co. v. C. F. Ins. Co., 95 Ala. 469, 11 South. 117, 16 L. R. A. 291; Haas v. Hudmon, 83 Ala. 174, 3 South. 302; Stoudenmire v. Harper, 81 Ala. 242, 1 South. 857; E. T., etc., R. R. Co. v. Johnston, 75 Ala. 596, 51 Am. Rep. 489. (2) In the present case there is nothing in the evidence that has any tendency to show that plaintiff had any knowledge of the custom relied on by defendant. It is clear that the itemized statement submitted by defendant to plaintiff, which contained only the names of purchasers and the amount of commission figured by defendant, contained no suggestion of such 'a custom, and exhibited no more than defendant’s own claim in the matter. Nor did plaintiff’s testimony that there was a custom in the automobile business diametrically opposed to the custom relied on by defendant, in any way tend to show any knowledge by him of the latter custom, but quite the contrary. So, also, the theory of implied knowledge of the custom — or, more properly, usage — entirely fails because it does not appear that the usage was existent at all prior to the date of the contract, and there is no basis for any inference of fact by the jury that plaintiff had knowledge of it at that time.—Stoudenmire v. Harper, 81 Ala. 242, 246, 1 South. 857. (3) There was therefore no question to submit to the jury as to the existence and effect of usage, and they were properly instructed to have regard only to the contract itself. This was not a charge on the effect of the evidence, but rather that there was no evidence, and its giving ex mero motu was clearly not inhibited, by section 5362 of the Code.—Thomas v. State, 150 Ala. 31, 43 South. 371. The theory upon which defendant’s refused charge was re- - quested was that, since at least $415 had been paid by defendant [385] to plaintiff on account of these sales, and this amount was sufficient to cover all commissions on cash sales, and since plaintiff could only recover on the fourth count for cash sales, and there was nothing to show that these payments were not applied to such sales, therefore plaintiff failed to show that anything was now due on the cash sales declared on in that count. (4) This theory overlooks and misplaces the burden of proof with respect to payment. Plaintiff’s case was fully made out when he proved cash sales. If the items proved had been paid, in whole or in part, the burden was on defendant to plead and prove it, either by showing an application thereto by one of the parties, or by implication of law.—Nelson v. Larmer, 95 Ala. 300, 11 South. 294; Kent v. Marks, 101 Ala. 350, 14 South. 472; Connor v. Armstrong, 91 Ala. 265, 9 South. 816. But there is nothing in the bill of exceptions to show any application to particular items by either expression or implication. The charge was therefore properly refused. Finding no error in the record, the judgment will be affirmed. Affirmed. Anderson, C. J., and Mayfield and Thomas, JJ., concur.