Opinion
8 Div. 134.
November 28, 1918.
Appeal from Circuit Court, Jackson County; W. W. Haralson, Judge.
Lawrence E. Brown, of Scottsboro, and Douglas Clarke, of Montgomery, for appellant.
John B. Tally, of Scottsboro, for appellee.
The suit was for the balance of the purchase of certain sawlogs on a parol contract.
There was ample evidence to warrant the submission of the controverted questions of fact for the finding of the jury. Amerson v. Coronoa Coal Iron Co., 194 Ala. 175, 69 So. 601; Tobler v. Pioneer, etc., Co., 166 Ala. 482, 52 So. 86; John v. Birmingham Realty Co., 172 Ala. 603, 55 So. 801. The affirmative charges requested were properly refused.
The respective versions of the contract of purchase — embracing the terms of delivery in Paint Rock river or its tributaries for transportation to defendant's boom, whether the terms of the contract of sale (original or modified) were explicit in themselves, or had reference to and were aided by the custom of sales and floating sawlogs to defendant's mill (Crandall-Pettee Co. v. Jebeles Colias Conf. Co., 195 Ala. 152, 69 So. 964) and what the custom was as affected by the flood seasons — were fairly submitted to the jury, and found expression in the verdict for plaintiff.
We have examined the evidence and are of opinion the trial court committed no error in refusing to grant a new trial. Cobb v. Malone, 92 Ala. 630, 9 So. 738; Nashville, C. St. L. Ry. v. Crosby, 194 Ala. 338, 347, 352, 70 So. 7. We cannot say from this record that we are clearly convinced that the judgment appealed from is wrong and unjust. Mower v. Shannon, 178 Ala. 469, 59 So. 568.
The charges given at plaintiff's written request correctly hypothesized a phase of the evidence as to delivery, and so of defendant's given charges 1 and 2. Appellant's refused charges Nos. 5 and 6 were substantially and fairly given by the court's general charge, or in charges given at the request of defendant. General Acts 1915, p. 815.
The judgment of the circuit court is affirmed.
Affirmed.
ANDERSON, C. J., and MAYFIELD and SOMERVILLE, JJ., concur.