HARALSON, J.
1. The account referred to in section 2773 of the Code, which mav be verified by affidavit of a competent witness, taken in the manner and subject to the conditions therein prescribed, is, we apprehend, an open and not a stated account. -The fact that the verified account, should contain a statement of its items, would so indicate ; and oesides, to maintain an action on an account stated, the plaintiff must prove the fact of its statement; it must be proved as laid to authorize a recovery, — that and nothing else will support his allegation in the complaint. If the plaintiff m ike that proof, he is entitled to judgment, otherwise not. As has been said, “an account stated is an account balanced, and rendered, with an assent to the balance, express or implied ; so that the demand is essentially the same as if a promissory note had been given for the balance.” Lowenthal v. Morris, 103 Ala. 336; Bass v. Bass, 8 Pick. 187. The affidavit authorized by the statute seems, therefore, to be inapplicable to a suit on an. account stated, and there was no error in the ruling of the court so holding. — McCemant v. Batscll, 59 Tex. 363.
The defendant filed four pleas, upon which the plaintiff took issue, without special replication to either. If either of these pleas was bad when tested on demurrer, or if its defects might have been avoided by special replication, setting up other facts to that end, still, if without this, issue was taken on a defective or imperfect plea instead of forcing an issue, in the manner indicated, on the real and meritorious facts, and the facts as set up in the plea were substantially proved, — the defendants having done or suffered nothing to waive their right to a replication, the plaintiff was entitled to a judgment thereon, and the general charge if requested, might have been given on the plea. But, another well recognized principle must not be overlooked, — chat when a case is tried, as though upon an issue on which it is not triable, on the pleadings as set out, this court on review will treat the case as though the proper issue had been made up, such as the course of trial indicates was proper to have been made, and that a failure to interpose the proper plea, was waived, — as where there is no plea by [308]*308defendant of contributory negligence, on the part of plaintiff in an action for alleged, injuries to him by the defendant, and the parties proceed without such plea to trial of the case on the issue of contributory negligence as though, pleaded, the fact that such a plea was not interposed will be deemed to have been waived. — R. & D. R. R.v. Farmer, 97 Ala. 141; Kansas City R. Co. v. Burton, Ib. 240; Andrews v. B. M. R. Co. 99 Ala. 438 ; Payne v. Crawford, 102 Ala. 387. In the case before us, there was no replication to the second plea, setting up a ratification by defendants of the shipment and sale by plaintiffs of their cotton in Liverpool, in the manner stated in said second plea, without their knowledge and consent; but the case was tried and evidence of ratification of such shipment and sale was received without objection by defendants, as though a proper replication to the plea, setting up such ratification had been interposed. We must, therefore, treat the defendants as having waived the replication of ratification, and that they tried the cause as though such replication had been properly interposed.
2. The proof tends to show, that the 200 bales of long staple cotton belonged to the defendants ; that they bought and shipped it in December 1892, and January 1893, from Eufaula, Ala., where they lived, paying the freights on it, to the plaintiffs in Savannah, Georgia, for sale on account: that plaintiffs advanced to defendants 9i cents per pound on the cotton at the time of that shipment; that during the months of January, February, and March 1893, they informed defendants, at different times, that the market for such cotton was limited and spasmodic, and that there was no market at that time for said cotton in Savannah at a premium, and advised defendants to have said cotton shipped to Liverpool, England, for sale, but that defendants would not consent thereto, and objected to such shipment, and instructed them not to ship it; that complainants then reqm sted from defendants, for their own protection, a margin of $1,000, on the cotton, with which request defendants refused to comply ; that said cotton was consigned, nevertheless, by plaintiffs to Liverpool, about' the 10th of April, 1893, without the knowledge of defendants, and there sold, in the months of May, June, July and August of that year, on account of defendants ; [309]*309that- on the 6th of December, 1893, plaintiffs sent to defendants a statement of their account, with an account sales of the 200 bales of cotton, showing the balance $946.55 here sued for and requesting a remittance of the same, to which defendants made no reply, although the letter and account as stated was received the next day, Dec. 6, .1.893. On December 19th 18.93, the plaintiffs again wrote to defendants, calling their attention to the fact that on Dec. 5th, they had sent them a statement of the 200 bales of long staple cotton, which they stated in the letter they had shipped for defendants’ account to Babcock & Co., Liverpool, and asking if the letter and statement had been received, and requesting a remittance of the balance due as stated due to plaintiffs. This letter was received on the 20th December, 1893, but defendants made no reply thereto. On January 2, 1894, plaintiffs wrote again to defendants, requesting a reply to their letter of the 19th, which letter was received by defendants, the day after it was written, but no reply was made to it. Plaintiffs further proved, that from 5th of December 1893, the date they transmitted their statement of accounts to defendants, showing balance of the amount here sued for, until 1st of April, 1894, after their account had been placed in the hands of their attorney for collection, defendants had made no objection of any kind to the same. When presented by their attorney on April 1, 1894, defendants declined to pay it, and this so far as the evidence shows was the first and only reply they made to plaintiffs after they sent them their statement of Dec. 5, 1893. This proof on the part of the plaintiffs was received without objection, and is without conflict of other evidence.
It was further shown, that defendants had shipped to plaintiffs for sale during the season 'other large lots of cotton, and there was proof tending to show that the accounts between them, except for this lot of 200 bales had been settled.
The defendants offered evidence to show that said cotton in January 1893, was worth in Falls River, Mass, lli cents per pound, to which evidence plaintiffs objected, on the ground of its being illegal and incompetent, but the court admitted it, and the plaintiffs excepted. The defendants offered, in this connection to prove the freight rate from Savannah to Falls River, but [310]*310on the objection of plaintiffs, it was not allowed by the court.
This cotton as the evidence tends to show, was shipped by defendants to plaintiffs at Savannah to be there sold. There is no evidence, that it was in the contemplation of the parties, to have it sold elsewhere, and it is shown, that there was always a market for it in Savannah, but not at such a price as the plaintiffs, repre sen ting defendants, were willing to take for it.
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HARALSON, J.
1. The account referred to in section 2773 of the Code, which mav be verified by affidavit of a competent witness, taken in the manner and subject to the conditions therein prescribed, is, we apprehend, an open and not a stated account. -The fact that the verified account, should contain a statement of its items, would so indicate ; and oesides, to maintain an action on an account stated, the plaintiff must prove the fact of its statement; it must be proved as laid to authorize a recovery, — that and nothing else will support his allegation in the complaint. If the plaintiff m ike that proof, he is entitled to judgment, otherwise not. As has been said, “an account stated is an account balanced, and rendered, with an assent to the balance, express or implied ; so that the demand is essentially the same as if a promissory note had been given for the balance.” Lowenthal v. Morris, 103 Ala. 336; Bass v. Bass, 8 Pick. 187. The affidavit authorized by the statute seems, therefore, to be inapplicable to a suit on an. account stated, and there was no error in the ruling of the court so holding. — McCemant v. Batscll, 59 Tex. 363.
The defendant filed four pleas, upon which the plaintiff took issue, without special replication to either. If either of these pleas was bad when tested on demurrer, or if its defects might have been avoided by special replication, setting up other facts to that end, still, if without this, issue was taken on a defective or imperfect plea instead of forcing an issue, in the manner indicated, on the real and meritorious facts, and the facts as set up in the plea were substantially proved, — the defendants having done or suffered nothing to waive their right to a replication, the plaintiff was entitled to a judgment thereon, and the general charge if requested, might have been given on the plea. But, another well recognized principle must not be overlooked, — chat when a case is tried, as though upon an issue on which it is not triable, on the pleadings as set out, this court on review will treat the case as though the proper issue had been made up, such as the course of trial indicates was proper to have been made, and that a failure to interpose the proper plea, was waived, — as where there is no plea by [308]*308defendant of contributory negligence, on the part of plaintiff in an action for alleged, injuries to him by the defendant, and the parties proceed without such plea to trial of the case on the issue of contributory negligence as though, pleaded, the fact that such a plea was not interposed will be deemed to have been waived. — R. & D. R. R.v. Farmer, 97 Ala. 141; Kansas City R. Co. v. Burton, Ib. 240; Andrews v. B. M. R. Co. 99 Ala. 438 ; Payne v. Crawford, 102 Ala. 387. In the case before us, there was no replication to the second plea, setting up a ratification by defendants of the shipment and sale by plaintiffs of their cotton in Liverpool, in the manner stated in said second plea, without their knowledge and consent; but the case was tried and evidence of ratification of such shipment and sale was received without objection by defendants, as though a proper replication to the plea, setting up such ratification had been interposed. We must, therefore, treat the defendants as having waived the replication of ratification, and that they tried the cause as though such replication had been properly interposed.
2. The proof tends to show, that the 200 bales of long staple cotton belonged to the defendants ; that they bought and shipped it in December 1892, and January 1893, from Eufaula, Ala., where they lived, paying the freights on it, to the plaintiffs in Savannah, Georgia, for sale on account: that plaintiffs advanced to defendants 9i cents per pound on the cotton at the time of that shipment; that during the months of January, February, and March 1893, they informed defendants, at different times, that the market for such cotton was limited and spasmodic, and that there was no market at that time for said cotton in Savannah at a premium, and advised defendants to have said cotton shipped to Liverpool, England, for sale, but that defendants would not consent thereto, and objected to such shipment, and instructed them not to ship it; that complainants then reqm sted from defendants, for their own protection, a margin of $1,000, on the cotton, with which request defendants refused to comply ; that said cotton was consigned, nevertheless, by plaintiffs to Liverpool, about' the 10th of April, 1893, without the knowledge of defendants, and there sold, in the months of May, June, July and August of that year, on account of defendants ; [309]*309that- on the 6th of December, 1893, plaintiffs sent to defendants a statement of their account, with an account sales of the 200 bales of cotton, showing the balance $946.55 here sued for and requesting a remittance of the same, to which defendants made no reply, although the letter and account as stated was received the next day, Dec. 6, .1.893. On December 19th 18.93, the plaintiffs again wrote to defendants, calling their attention to the fact that on Dec. 5th, they had sent them a statement of the 200 bales of long staple cotton, which they stated in the letter they had shipped for defendants’ account to Babcock & Co., Liverpool, and asking if the letter and statement had been received, and requesting a remittance of the balance due as stated due to plaintiffs. This letter was received on the 20th December, 1893, but defendants made no reply thereto. On January 2, 1894, plaintiffs wrote again to defendants, requesting a reply to their letter of the 19th, which letter was received by defendants, the day after it was written, but no reply was made to it. Plaintiffs further proved, that from 5th of December 1893, the date they transmitted their statement of accounts to defendants, showing balance of the amount here sued for, until 1st of April, 1894, after their account had been placed in the hands of their attorney for collection, defendants had made no objection of any kind to the same. When presented by their attorney on April 1, 1894, defendants declined to pay it, and this so far as the evidence shows was the first and only reply they made to plaintiffs after they sent them their statement of Dec. 5, 1893. This proof on the part of the plaintiffs was received without objection, and is without conflict of other evidence.
It was further shown, that defendants had shipped to plaintiffs for sale during the season 'other large lots of cotton, and there was proof tending to show that the accounts between them, except for this lot of 200 bales had been settled.
The defendants offered evidence to show that said cotton in January 1893, was worth in Falls River, Mass, lli cents per pound, to which evidence plaintiffs objected, on the ground of its being illegal and incompetent, but the court admitted it, and the plaintiffs excepted. The defendants offered, in this connection to prove the freight rate from Savannah to Falls River, but [310]*310on the objection of plaintiffs, it was not allowed by the court.
This cotton as the evidence tends to show, was shipped by defendants to plaintiffs at Savannah to be there sold. There is no evidence, that it was in the contemplation of the parties, to have it sold elsewhere, and it is shown, that there was always a market for it in Savannah, but not at such a price as the plaintiffs, repre sen ting defendants, were willing to take for it. The proof on the part of the defendants is, that it was worth 11 cents per pound, at the time it was shipped from Savannah, and that on the part of plaintiffs, that it was not worth more than 9i cents per pound, at that time.
The rule as laid down by Sutherland, in his work on damages, on the proof of value, which seems consonant with reason and well supported by authority is, that “Where the question is, what was the value at a particular place, an l there was no ma'ket value there, proof may be given of the market value at other places, with the cost of transportation, or other facts that will enable the jury to deduce the value at the place in question. Evidence of the value at other places than the place in question is inadmissible where the evidence is clear that there is a value at that place.” 1 Suth. on Dam. 796; 1 Sedg. on Dam. 586 — 590 and notes; 3 Am. & Eng. Ency. of Law, 326. And a proper rule as settled is, that where a factor reships goods consigned to him by his principal, without the latter’s advice, and they are sold at less than they might have been sold for at the place of shipment, where, in the contemplation of the parties they were designed to be sold, he will be liable for the difference in the price for vchich they were sold and the market value of the goods at the first port. — Grieff v. Cowguill, 2 Disn. (Ohio) 58 ; 3 Amer. & Eng. Ency. of Law, 326.
It is undeniably true, also, that a factor has a general lien upon goods consigned to him and the proceeds of their sale for advances and commissions consequent upon their reception, safe-keeping and sale. — Martin v. Pope, 6 Ala. 532 ; Schiffer v. Frazier, 51 Ala. 335 : 3 Ency. of Law, 333.
Applying these principles, then, to the case in hand, and it seems clear, that proof of the market value at [311]*311Falls River, a remote market, when the proof tended to show that there was a market for the cotton at Savannah, equal or nearly so to that at Falls River, was improper to he made. It is also clear, that plaintiffs ought not to have shipped the cotton to Liverpool for sale, contrary to the instructions of their principals, when it might have been sold in Savannah, unless they chose to do so at their own risk assuming the risk of any damage they might thereby do the defendants, by a failure to sell in Savannah.
3. The time within which an act is to be performed, when no 'time is specified, is within a reasonable time. What this is, is often a mixed question of law and fact. When the facts are not in conflict, it is a question for the court, but if any of the facts bearing on the case are in question, it becomes the duty of the court to submit them to the jury. 2 Parsons on Contracts, 535; The facts as to time in this case are not in dispute. The first charge, notwithstanding, submits the question of reasonable time to the jury. It was a question for the court.
4. The second and the third charges requested by the plaintiffs should have been given. The defendants were notified of the sale of the cotton, and received the account sales of it by letter dated 5th of December 1893, which they received the following day, informing them that the net proceeds had been placed to their credit. They made no objection to the sale, nor to the application of the proceeds to their credit, until after April 1, 1894 — the space of about four months. The charges, hypothesizing such a state of facts, requested the instruction that such delay, upon such information, must be treated^as a ratification of the Liverpool sale. The evidence shows, that after December 5th, plaintiffs wrote again on December 19, and Jan’y2, 1894, which letters were received, the first requesting a reply and a remittance, and the other requesting the reply to the one of 19th of December, but to which defendants made no replies, and remained silent, as we have seen, until after April 1, 1894, when the attorney for plaintiffs presented the account to them.
In Meyer v. Morgan, 51 Miss., 21 the court says: ‘ ‘The course of business between the factor and his correspondents, implies prompt responses to business [312]*312letters. If the factor advises Ms correspondents of his acts with respect to his property, and he does not in a reasonable time disaffirm and so notify the agent, the latter may well presume that his conduct has been approved. So large a part of the commerce of the world is done through agents of one sort or another, that it is necessary that this principle should prevail. Hence it is incorporated into all the systems of jurisprudence. Story on Agency, § 258. The principle must disaffirm. Silence will be equivalent to approval.” The court add, “The principal, within a reasonable time, must elect to approve or disapprove the unauthorized act of'the agent of which he has been informed. He cannot remain silent and await the vicissitudes of a fluctuating market, and if the price rises, disaffirm and claim the difference ; or, if it declines, acquiesce in the sale.”
In Powell v. Henry, 27 Ala., 612, it was held, that if an agent exceed his authority, although the principal may ratify the act, yet to avoid it, he is not obliged to give notice that he repudiates it.” In Mobile & M. R. R. Co. v. Joy, 65 Ala., 116, it was held that this was a too comprehensive statement of the law, and the better doctrine was there expressed, that in cases where the party dealing with an agent is misled or prejudiced by him, or where the usage of trade requires, or fair dealing demands, the principal, if dissatisfied with the act of the agent, and is fully informed of what has been done, must express his dissatisfaction within a reasonable time. — Burns v. Campbell, 71 Ala., 273 ; Clarke v. Taylor, 68 Ala., 461; Central R. R. Co v. Cheatham, 85 Ala., 300 ; Reynolds v. Palmer, 41 La., 425 ; Ward v. Warfield, 3 La., 648; 1 Am. & Eng. Ency. of Law; 439-40, and authorities cited.
For the errors indicated, the judgment must be reversed, and the cause remanded.
Reversed and remanded.