GOLDTHWAITE, J.
1. The defendant does not question the correctness of the general instruction, on which the cause was submitted to the jury, so far as that goes, but insists, he was entitled, from the proof to make the several points presented by his requests for distinct charges. To this the plaintiff answers, without admitting the correctness of the propositions advanced, that most, if not all of these, were properly refused, on the ground that they are abstract, in other terms, not called for by the evidence. If the case rested' alone on the testimony of the first witness, there would be no room for discussion, as that makes out a naked sale, of which at most there would be a full performance on the part of the plaintiff by delivery; but the defendant insists this contract was essentially modified by the conversation between the parties on the 27th December, as well as that the admissions of the plaintiff indicate that the sale itself was made with a stipulation, that credit should be given for a portion of thetf price, until returns were or could be received from Liverpool. Whether the contract for sale was one for a credit, or whether it was modified in any material manner [527]*527by the conversation of which evidence was given, or whether the plaintiff assented to the modifications which it is insisted the defendant proposed as the equivalent for the delay in the delivery of the cotton, or whether, in point of fact, there was any delay, or whether this conversation applied to the whole of the cotton,-or only the portion then not delivered, were all questions for the consideration and determination of the jury. For the court to undertake to pronounce that none, or which, or that any of these matters, were or were not established, was a judgment upon the weight of the evidence, which it was incompetent to give. It is at all times a question of much delicacy, to refuse a legal charge on the ground that it is not supported by evidence, but to do so when there is any evidence before the jury to warrant the proposition, is clearly erroneous. [Wiswall v. Ross, 4 Porter, 231; Harrell v. Floyd, 3 Ala. Rep. 16.] We think the objections to the charges, on account of their being abstract, cannot be sustained.
2. We shall now proceed to examine the several legal propositions which the different requests for instruction contain, but in doing this, shall endeavor to group them into classes. The first and eighth are sufficiently similar to be considered together. If the contract was to allow the defendant a credit, for all but $ 1,000 of the price, until returns for the cotton could be had from Liverpool, it cannot, we think, be disputed that this must be construed as a stipulation to wait until, by the ordinary course of trade, a sufficient time had elapsed for a shipment and returns. And in this light the requests seem to consider it. If the admissions of the plaintiff connected themselves with the contract of sale, so that the credit formed a part of it, then there can be little question that a sufficient time had not elapsed between the delivery of the cotton and the 14th of March, 1845, (at which time the suit was instituted), for it to have been shipped and returns made. If, on the other hand, it was a gratuitous extension of delay, made after the contract was otherwise complete, there can be no pretence to say the suit is affected by it. [Ross. on Vend. 59; Stedman v. Gooch, 1 Esp. 5.] Which of these, or what was the proper inference from the proof, as we have before said, was determinable by the jury.
[528]*5283. But the plaintiff contends that the denial by the defendant, that he was in any way liable to pay for the cotton after its destruction, relieved him from the necessity of waiting' until the expiration of the credit, if one, in point of fact, was a part of the contract, to commence a suit to ascertain his rights. It must be confessed this proposition is deserving of great consideration. If it was conceded, that every seller upon credit is justly entitled to demand from the buyer an acceptance, which is the general course of trade in some commercial places, (Ross, on Tend. 53) or at least a sale note, or -other memorandum in writing, ascertaining the terms of the contract, it seems well settled in England, and in the courts -of the Union, that a neglect or refusal to do so, will not enti* tie the seller to an immediate action for goods sold and deli* vered, though it seems he may do so on the special contract. [Musser v. Price, 4 East, 147; Dutton v. Salomonser, 3 B. & P. 582; Ferguson v. Carrington, 9 B. & C. 59; Thompson v. Morriss, 2 Murphy, 248; Allen v. Ford, 19 Pick. 217.] There is a class of decisions which hold, that where the buyer has obtained goods upon a credit by a fraudulent re* presentation that paper given for them is good, which turns out to be otherwise, that then the contract may bé repudiated, and a new one implied to pay at once for the goods. [Bank v. Gore, 15 Mass. 79; Wilson v. Force, 6 John. 110.] So it has been held,when the buyer obtained possession of the goods, where the sale was on condition to give security, and he afterwards refused to give it, the seller might treat the sale-as absolute, and sue immediately. [Corlies v. Gardner, 2 Hall, 345.] It should be remarked, however, that this last decision seems in direct conflict with Allen v. Ford, before' cited, and many of the English decisions, unless there is a distinction between the refusal, and a neglect to give the security. The reason of the decisions is said to be, that the seller, by bringing the action for goods sold, &c., considers the contract of sale as existing, and that the law will not im* ply a contract where the parties have expressed their own terms. [Strutt v. Smith, 1 Crump S. C. Mus. & R. 315.] Assuming, however, the decision in Corlies v. Gardner, as declaring the true rule, and assimilating the refusal to give the security contracted for to a case of fraud, it will be evi-[529]*529Rent this case is not within the principle. If the mere denial of liability will authorize a suit before the maturity of the credit, it would bring every case of disputed contract at once to an, issue, independent of the timé fixed by the parties for its performance. We are not prepared to say that such a rule would be a bad one, but it is certain it has no sanction in authority. We are, then, constrained to say, that if a credit was stipulated for, there could be no recovery except for the sum due according to the contract when the suit was commenced. In our judgment, there was no valid reason to refuse the charges to which this paragraph has reference.
4. The ninth request asserts the proposition, that the omission of the plaintiff to reply to the remark of the defendant, that timely notice, &c. must be given him of the delivery of the cotton, is to be construed as the plaintiff’s assent to this as a condition. We think this cannot be sustained: though we are not prepared to say this must be considered as an assent, it is possible the jury might so consider it. It may be, however, that the plaintiff omitted to press his request further for delay, from the conviction it would be unnecessary, as only thirty bales were then undelivered. The objection to the request is, that the evidence bearing on this, point is too indefinite and inconclusive to warrant the court in saying that one thing or another was proved by it. It is quite possible the whole of the cotton was delivered within the time contemplated by the parties when the contract was made, and if so, the just inference would be, that the proposition for delay was abandoned, and it might be otherwise if it was not so delivered.
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GOLDTHWAITE, J.
1. The defendant does not question the correctness of the general instruction, on which the cause was submitted to the jury, so far as that goes, but insists, he was entitled, from the proof to make the several points presented by his requests for distinct charges. To this the plaintiff answers, without admitting the correctness of the propositions advanced, that most, if not all of these, were properly refused, on the ground that they are abstract, in other terms, not called for by the evidence. If the case rested' alone on the testimony of the first witness, there would be no room for discussion, as that makes out a naked sale, of which at most there would be a full performance on the part of the plaintiff by delivery; but the defendant insists this contract was essentially modified by the conversation between the parties on the 27th December, as well as that the admissions of the plaintiff indicate that the sale itself was made with a stipulation, that credit should be given for a portion of thetf price, until returns were or could be received from Liverpool. Whether the contract for sale was one for a credit, or whether it was modified in any material manner [527]*527by the conversation of which evidence was given, or whether the plaintiff assented to the modifications which it is insisted the defendant proposed as the equivalent for the delay in the delivery of the cotton, or whether, in point of fact, there was any delay, or whether this conversation applied to the whole of the cotton,-or only the portion then not delivered, were all questions for the consideration and determination of the jury. For the court to undertake to pronounce that none, or which, or that any of these matters, were or were not established, was a judgment upon the weight of the evidence, which it was incompetent to give. It is at all times a question of much delicacy, to refuse a legal charge on the ground that it is not supported by evidence, but to do so when there is any evidence before the jury to warrant the proposition, is clearly erroneous. [Wiswall v. Ross, 4 Porter, 231; Harrell v. Floyd, 3 Ala. Rep. 16.] We think the objections to the charges, on account of their being abstract, cannot be sustained.
2. We shall now proceed to examine the several legal propositions which the different requests for instruction contain, but in doing this, shall endeavor to group them into classes. The first and eighth are sufficiently similar to be considered together. If the contract was to allow the defendant a credit, for all but $ 1,000 of the price, until returns for the cotton could be had from Liverpool, it cannot, we think, be disputed that this must be construed as a stipulation to wait until, by the ordinary course of trade, a sufficient time had elapsed for a shipment and returns. And in this light the requests seem to consider it. If the admissions of the plaintiff connected themselves with the contract of sale, so that the credit formed a part of it, then there can be little question that a sufficient time had not elapsed between the delivery of the cotton and the 14th of March, 1845, (at which time the suit was instituted), for it to have been shipped and returns made. If, on the other hand, it was a gratuitous extension of delay, made after the contract was otherwise complete, there can be no pretence to say the suit is affected by it. [Ross. on Vend. 59; Stedman v. Gooch, 1 Esp. 5.] Which of these, or what was the proper inference from the proof, as we have before said, was determinable by the jury.
[528]*5283. But the plaintiff contends that the denial by the defendant, that he was in any way liable to pay for the cotton after its destruction, relieved him from the necessity of waiting' until the expiration of the credit, if one, in point of fact, was a part of the contract, to commence a suit to ascertain his rights. It must be confessed this proposition is deserving of great consideration. If it was conceded, that every seller upon credit is justly entitled to demand from the buyer an acceptance, which is the general course of trade in some commercial places, (Ross, on Tend. 53) or at least a sale note, or -other memorandum in writing, ascertaining the terms of the contract, it seems well settled in England, and in the courts -of the Union, that a neglect or refusal to do so, will not enti* tie the seller to an immediate action for goods sold and deli* vered, though it seems he may do so on the special contract. [Musser v. Price, 4 East, 147; Dutton v. Salomonser, 3 B. & P. 582; Ferguson v. Carrington, 9 B. & C. 59; Thompson v. Morriss, 2 Murphy, 248; Allen v. Ford, 19 Pick. 217.] There is a class of decisions which hold, that where the buyer has obtained goods upon a credit by a fraudulent re* presentation that paper given for them is good, which turns out to be otherwise, that then the contract may bé repudiated, and a new one implied to pay at once for the goods. [Bank v. Gore, 15 Mass. 79; Wilson v. Force, 6 John. 110.] So it has been held,when the buyer obtained possession of the goods, where the sale was on condition to give security, and he afterwards refused to give it, the seller might treat the sale-as absolute, and sue immediately. [Corlies v. Gardner, 2 Hall, 345.] It should be remarked, however, that this last decision seems in direct conflict with Allen v. Ford, before' cited, and many of the English decisions, unless there is a distinction between the refusal, and a neglect to give the security. The reason of the decisions is said to be, that the seller, by bringing the action for goods sold, &c., considers the contract of sale as existing, and that the law will not im* ply a contract where the parties have expressed their own terms. [Strutt v. Smith, 1 Crump S. C. Mus. & R. 315.] Assuming, however, the decision in Corlies v. Gardner, as declaring the true rule, and assimilating the refusal to give the security contracted for to a case of fraud, it will be evi-[529]*529Rent this case is not within the principle. If the mere denial of liability will authorize a suit before the maturity of the credit, it would bring every case of disputed contract at once to an, issue, independent of the timé fixed by the parties for its performance. We are not prepared to say that such a rule would be a bad one, but it is certain it has no sanction in authority. We are, then, constrained to say, that if a credit was stipulated for, there could be no recovery except for the sum due according to the contract when the suit was commenced. In our judgment, there was no valid reason to refuse the charges to which this paragraph has reference.
4. The ninth request asserts the proposition, that the omission of the plaintiff to reply to the remark of the defendant, that timely notice, &c. must be given him of the delivery of the cotton, is to be construed as the plaintiff’s assent to this as a condition. We think this cannot be sustained: though we are not prepared to say this must be considered as an assent, it is possible the jury might so consider it. It may be, however, that the plaintiff omitted to press his request further for delay, from the conviction it would be unnecessary, as only thirty bales were then undelivered. The objection to the request is, that the evidence bearing on this, point is too indefinite and inconclusive to warrant the court in saying that one thing or another was proved by it. It is quite possible the whole of the cotton was delivered within the time contemplated by the parties when the contract was made, and if so, the just inference would be, that the proposition for delay was abandoned, and it might be otherwise if it was not so delivered. Nor is -the hypothesis improbable, that neither party expected any consequences to flow from this conversation, unless there was a delay in -the delivery, 'and then only as to the matter of storage.
5. The second, third, fifth and sixth requests are predicated on the assumption that notice of the delivery of the cotton was essential to charge the plaintiff, either under the contract as made in the first instance, or if modified by the conversation between the parties on the 27th December, so as to interpose the condition that notice should be given the plaintiff. If the contract, as testified by the first witness, was, [530]*530that the cotton should be delivered to the warehouseman indicated by the defendant, it is, in our judgment, a matter of no importance whether he was indicatéd as a warehouseman, or as the agent of the defendant. The general rule with respect to consignments to third persons, so as to place the property at the risk of the buyer, is, that notice shall be given, (Goom v. Jackson, 5 Esp. 112,) but where the carrier or warehouseman is named or indicated by the buyer, a delivery to the carrier, &c. is a delivery to the buyer. [Dawes v. Peck, 8 Term, 330; Cook v. Ludlow, 2 New R. 119.] If, however, the contract was in point of fact so modified after-wards, as to make it a condition that the plaintiff should give timely notice to the defendant of the delivery to the warehouseman, then the latter has the right to insist on this, as upon any term of the contract. We have nothing to do with the improbability that the jury could come to the conclusion that such a condition was made, either as to the whole of the cotton, or to that part not then delivered. It is sufficient to warrant the defendant in asking the charges involving this point, that there was evidence on it for them to weigh and decide upon.
6. In this connection, we may properly advert to an argument made in this cause, though the question does not seem involved in any of the requests, that the warehouse receipts being in the name of the plaintiff, there was no delivery to the defendant. Without entering upon the question, whether such receipts are negotiable, so as to pass the legal title by an assignment, we think it very clear that no question of law, decisive of the rights of the parties, arises out of this circumstance. The proper matter for the jury to ascertain was, whether the delivery of the cotton to the warehouseman was made on account of the defendant, or did the plaintiff cause the receipts to be taken to himself, to preserve his right of property ? In this view, the concurrence, or the want of it, by the plaintiff, in requiring the receipts to be thus taken —the assumpsion by the defendant of the right to ship it— the payment of a part of the price, &c. were all facts bearing on the determination, which, in our opinion, was one solely for the jury.
7. All the other requests relate more or less to the question, [531]*531how far charges for storage, if any were due from the plaintiff, and constituting a lien on the cotton, prevented the title from passing to the defendant, until they were discharged. We think this is a question which the defendant is not permitted to raise, even if it is admitted the cottons were subject to liens, for charges which the plaintiff was bound to pay. The warehouseman was indicated by the defendant himself, and if charges accrued, he must have known of the general right of lien, and the title passed to him notwithstanding the lien. In Philemon v. Curry, 1 Camp. 513, and King v. Meredith, 2 Camp. 639, it was held that a lien for storage or transportation, to be paid by the plaintiff, did not prevent the property from passing when the other essentials of delivery were complete. To the same effect is Taworth v. Moore, 9 Pick. 347, and the cases cited by defendant, seem to contain' nothing opposed to these decisions. Indeed, a different doctrine would work incalculable mischiefs, as there is scarcely any bulky article of commerce which is- not at all times under some sort of lien, either for storage or transportation.
We come, then, to the conclusion, that the charges in this connection were properly refused; but independent of general principles, there is abundant proof in the cause to warrant the inference, that the warehousemen had waived any claim to their specific lien.
The court, however, having erred in considering there was not sufficient proof to warrant the charges which we have endeavored to show were unexceptionable as legal propositions, the judgment is reversed, and the cause remanded.