This action is brought by appellant on the following written obligation, to-wit: On the 25th day of December, A. D. 1853, “ I promise to pay and deliver to William H. Estill or bearer, in the town of Shreveport, Louisiana, at the warehouse of Oglesby & Griswold, or their successors, ten thousand pounds of merchantable ginned or lint cotton, for value received. November 3d, 1852.
Samuel C. Thompson. Francis D. Weaver.”
Appellee, who was defendant below, relied on two defences :
1st. That, by the terms of the contract, in view of the circumstances under which it was made, appellee had a right to deliver the cotton in parcels less than the whole, before the 25th day of December, 1853, to the warehouse of Oglesby & Griswold ; and when so delivered in parcels, would be a discharge of the contract pro tanto ; and that ten bales having been so delivered and burned up, before the day of payment, the loss fell on appellant, and not on appellee.
2d. That a new agreement was made between the parties, by which appellee .was authorised to deliver the cotton in parcels to the warehouse of Oglesby & Griswold, before the 25th of December, 1853, in discharge of the obligation.
*549There being nothing objectionable in the charge of the Court, the only question which can arise is, was there sufficient evidence to support either of these defences ?
To disembarrass the case', it will be necessary first to consider the last ground of defence, to-wit: whether or not there was a new contract made, as to the time and manner of delivery, different from that specified in the contract. This is dependent upon the answers of Estill, which were in evidence. They were, in substance, that Weaver said to Estill in the town of Henderson, that he was picking and packing a fine lot of cotton, and while the roads were good, would haul it to Shreveport; to which Estill answered, that he was glad that he was making preparations to pay it. At another time Weaver told Estill that he had started ten bales of cotton, to be delivered at the warehouse of Oglesby & Griswold, and that the balance would be delivered as soon as it was ready. Es-till replied, as he did in the previous conversation, that all he wanted was, the cotton on the 25th December, to be ready for him; to which Weaver said it would all be ready. Estill said to Weaver that he could store it as he chose; that all he wished was, for the cotton to be paid when the note became due. Estill said further, that he may have told Weaver, when informed that the cotton was stored in his (Estill’s) name, that it was all right, but denies that he accepted the cotton. It appears, in another part of the evidence, that the warehouse receipts were never given to Estill. This evidence we do not think sufficient to establish a new contract. The most pertinent part of it, tending to that result, is, that when informed that when the cotton was stored in his name, Estill says that he may have told Weaver that it was all right. He does not say that he did tell him -that it was all right. But suppose he did, what does it amount to ? He meant that his storing the cotton was all right, in view of the vigilant preparation which Weaver was making to discharge the obligation, on the day it fell due, as it had been spoken of before. Now, if Weaver *550had satisfied Estill that the cotton was a merchantable article, and had given him over the warehouse receipt, so as to put the cotton irrevocably under the .control of Estill, then it might have amounted to a delivery. But such was not the case. On Estill’s part there was something still to be done. He had a right to examine the cotton, to see if it filled the contract. He had neither done this, nor waived his right to do it. Weaver still had a right to deliver to Estill the ten bales already at Shreveport, when the day of payment should arrive, or he might have carried forty more there, and delivered him his amount of cotton (20 bales) out of any of the whole lot, without respect to the first ten or twenty bales which he might have carried there. There is a plain contract in writing, binding Weaver to deliver a. certain amount of cotton, at a certain day, and at a certain place. To vary the contract from those terms, it is incumbent on Weaver to show plainly that a new contract was made, and what were its terms. The evidence wholly fails to do so.
The new contract being dismissed from further consideration, did the terms of the contract, in view of the circumstances under which it was made, give Weaver a right to deliver the cotton in four, or any other number of separate parcels, to the warehouse, before the day stipulated, in discharge of his debt, and force Estill so to receive it ? Here, again, there is a plain contract specifying the exact amount to be delivered, and the exact day of delivery. Now, if there were any circumstances, surrounding or attending the making of this contract, which would show that the parties did not contemplate that all of the cotton should be delivered on one and the same day, or that it was not contemplated by them, to have the contract performed on the very day which they had specified, it was incumbent on Weaver to establish those facts ; and when established by proof, they should be of such forcible character, as to constrain the mind to the belief that the parties did not mean what they had themselves plainly stipulated in the writ*551ten obligation. The facts appearing out of the contract, which would, in any way, conduce to such a result, are, that Weaver made the cotton as a farmer, and would have to haul it by teams to the warehouse, and twenty bales more than a team would haul at one time. To which it may be answered, that it does not appear that Estill lived at Shreveport, or had any interest in the warehouse, from which it could be deduced that the cotton was subject to his supervision or control from the time of delivery ; there was no custom proved to perform a contract for a large lot of cotton at a day certain, by delivering parcels or loads thereof before the day; that the warehouse was as much subject to Weaver’s use as Estill’s for storing the cotton, until the day of delivery ; and that the charge of storage would more properly fall on Weaver than Estill: that Estill was not living at Shreveport, so far as the proof shows, to examine the quality and condition of the cotton, to see that it was merchantable, and might arrive in parcels ; that it was not shown that Estill occupied a position to as readily receive or use the cotton in delivered parcels, as when the whole was delivered. Under these circumstances we cannot say that the facts are presented, which constrains the mind to the belief that the parties did not mean exactly what they expressed in the contract.
The case relied on by appellee, in support of this view, is McGehee v. Hill, (1 Ala. R. 140.) There A contracted to deliver into B’s boat a large amount of corn, (seven or eight hundred bushels ;) B came with his boat and A refused to deliver any of the corn, because B was not prepared to take all the corn in the boat at the same load. Upon this refusal, B brought suit, and it was held that the parties had contracted in reference to the boat, by which means the corn was to be transported, and that the refusal to deliver a part of the corn, when the whole would be more than the boat would reasonably carry, was not justified by the contract.
In that case, it entered into the contract, that the corn was *552to be delivered in such quantities as could be carried in the boat of B, or in such boats as were commonly then in use for such a purpose. In the case before us it was not agreed to deliver twenty bales of. cotton into Estill’s wagon ; but it was to be delivered at a warehouse that would, as we may suppose, hold thousands of bales. If a farmer were to sell to a merchant one hundred thousand pounds of seed cotton, to be delivered on a certain day, to a gin in the neighborhood, then the case of McGehee v. Hill would apply. Because the gin would not, perhaps, contain that much at one time ; all the teams in the neighborhood might not be able to haul it in one day ; and all the hands in the neighborhood might not be able to move it from the wagons into the gin in one day. These circumstances constrain the mind to the belief that the parties did not intend so unreasonable a thing as the delivery of it all the same day. No such difficulties, however, attend the delivery of twenty bales of cotton, or even two hundred bales of cotton, at the warehouse of Oglesby & Griswold on the same day, as is shown by the common practice of transferring hundreds of bales of* cotton daily at the warehouses of market towns.
The object of Weaver, in taking the receipt in Estill’s name, was, most probably, to transfer this cotton on the day of payment, by simply handing over the warehouse receipt to Es-till, and lifting his obligation without the trouble and expense of going to Shreveport, merely to make a formal delivery of the cotton.
Another view of the case may be presented which will better illustrate the rights of the parties. When Estill demanded the cotton at Shreveport on the 25th December, 1853, suppose the ten bales not to have been burned, Weaver could not have required him to have accepted the ten bales only, under the contract. (Chaplin v. Rowley, 13 Wendell, 258; same case, 18 Wend. 187 ; Mead v. Degolger, 16 Wend. 632.) To hold the contrary of this, would force another change in the *553contract contrary to its expressions, to-wit: that, although twenty bales (10,000 pounds) were contracted for, Estill shall be required to take ten only, or such other number under twenty, as Weaver may be able to get there, by the time of payment. When that was accomplished, the contract would be changed in almost every-important particular. Such radical changes, in a plain, written contract, could only be permitted on very forcible facts well established, which we do not find in this case.
We do not think, therefore, that there was sufficient evidence to support the verdict, and a new trial should have been granted, on the motion that was made by appellant.
Judgment reversed and cause remanded.
Reversed and remanded.