Barnhill v. Metropolitan Life Ins. Co.

Alabama Court of Appeals

Barnhill v. Metropolitan Life Ins. Co.

170 So. 496, 27 Ala. App. 274, 1936 Ala. App. LEXIS 154

CourtAlabama Court of Appeals

DecidedOctober 6, 1936

Docket7 Div. 133.

StatusPublished

Cited by1 cases

This text of 170 So. 496 (Barnhill v. Metropolitan Life Ins. Co.) is published on Counsel Stack Legal Research, covering Alabama Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Barnhill v. Metropolitan Life Ins. Co., 170 So. 496, 27 Ala. App. 274, 1936 Ala. App. LEXIS 154 (Ala. Ct. App. 1936).

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Opinion

SAMFORD, Judge.

As we read this record, every question of merit is fully decided in the case of Box v. Metropolitan Life Insurance Co., ante, p. 21, 168 So. 209; Id., 232 Ala. 447, 168 So. 220-223, including the opinions of this court and of the Supreme Court.

A sufficient answer to appellant’s contention that replications 12, 13, and 14 differentiate the case at bar from the Box Case, supra, may be found in the cases of People’s Bank & Trust Co. v. Walthall, 200 Ala. 122, 75 So. 570; Stephenson *275 Brick Co. v. Bessemer Engineering & Construction Co., 224 Ala. 494, 140 So. 573, where it is held that evidence of a custom cannot be received to alter, con-' tradict, or vary the express terms of a contract.

In Corpus Juris it is said, on cited authority, that: “Valid custom and usage concerning the subject matter of a contract of which the parties are chargeable with knowledge, are by implication incorporated therein, unless expressly or impliedly excluded by its terms, and are admissible to aid in its interpretation, not as tending in any respect or manner to contradict, add to, take from, or vary the contract, but upon the theory that the usage forms a part of the contract. But evidence of usage is not admissible to vary or contradict the terms of a plain, unambiguous contract.” 17 Corpus Juris, 492 (58). The contract here is plain and unambiguous, and custom of the defendant to settle admitted claims other than as stipulated would n.ot constitute a waiver of its right to stand on the written terms of the contract plainly expressed.

The judgment is affirmed.

Affirmed.

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SAMFORD, Judge.

As we read this record, every question of merit is fully decided in the case of Box v. Metropolitan Life Insurance Co., ante, p. 21, 168 So. 209; Id., 232 Ala. 447, 168 So. 220-223, including the opinions of this court and of the Supreme Court.

A sufficient answer to appellant’s contention that replications 12, 13, and 14 differentiate the case at bar from the Box Case, supra, may be found in the cases of People’s Bank & Trust Co. v. Walthall, 200 Ala. 122, 75 So. 570; Stephenson *275 Brick Co. v. Bessemer Engineering & Construction Co., 224 Ala. 494, 140 So. 573, where it is held that evidence of a custom cannot be received to alter, con-' tradict, or vary the express terms of a contract.

In Corpus Juris it is said, on cited authority, that: “Valid custom and usage concerning the subject matter of a contract of which the parties are chargeable with knowledge, are by implication incorporated therein, unless expressly or impliedly excluded by its terms, and are admissible to aid in its interpretation, not as tending in any respect or manner to contradict, add to, take from, or vary the contract, but upon the theory that the usage forms a part of the contract. But evidence of usage is not admissible to vary or contradict the terms of a plain, unambiguous contract.” 17 Corpus Juris, 492 (58). The contract here is plain and unambiguous, and custom of the defendant to settle admitted claims other than as stipulated would n.ot constitute a waiver of its right to stand on the written terms of the contract plainly expressed.

The judgment is affirmed.

Affirmed.

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170 So. 496, 27 Ala. App. 274, 1936 Ala. App. LEXIS 154, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barnhill-v-metropolitan-life-ins-co-alactapp-1936.

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