The recital of the evidence in the bill of exceptions would seem to indicate that the contract for ninety bales of cotton was entire, and that none of them were put at the purchaser’s risk until all were weighed. The charge given in answer to the third prayer of the defendant’s counsel for instructions, which asserted that only as to the cotton not weighed, did the seller’s risk continue — and the refusal to give the two following charges prayed, clearly show the opinion of the Judge to have been, that the cotton which was weighed might be at the purchaser’s risk, although the remainder might not be in a deliverable state.
The entirety of the contract is a question of law, while the terms in which it was entered into are referable to the jury and must be ascertained by them. Instead then, of undertaking to inform the jury that the contract was divisible, the Court should have instructed them, that if the agreement was to purchase ninety bales of cotton in a warehouse in Mobile, at the prices stated by the witness, all of which were not in a condition to be delivered, because all was not weighed, the contract was entire for the purchase of all the cotton, though *311there may have been a difference in the price, according to classification, and the bales had several distinct marks on them, indicating the name, &c. of the planter who prepared them for market.
In determining the character of the contract, we cannot, as argued by the defendant in error, be influenced by the extent of the orders which the broker had from his customers for cotton on the day he made the purchase in question. The seller had no connection with these orders, and does not appear from the record to have been aware of them. But even if the purchaser had fully, informed the seller on this point, it could not change the legal effect of the contract; this must be ascertained from the situation of the parties, the subject matter and the terms employed by them as furnishing the surest indicia of their intention.
Thesending the delivery order by thedefendant in error to the plaintiff’s broker was a gratuitous act, and done as it seems at his own suggestion. The quo animo with which it was sent and received does not appear; and it cannot be inferred that either party intended thereby to perfect the sale, inasmuch as the situation of the cotton remained as it was when the contract was made. Perhaps the reasonable inference is, the delivery order was sent merely to enable the purchaser to examine the cotton, and after it should be weighed to invest him with the right of property.
In Magee v. Billingsly, [3 Ala Rep. 698,] we say, “the order to the warehouseman to deliver all the cotton of the plaintiff in store, is not conclusive evidence -to show a transfer of right; but the prima facie inference, from an inspection of the paper taken in connection with the contract, is that the seller intended to part with the possession, as well as the property, in favor of the purchaser.” In that case it appeared that the order was received and presented at the warehouse, and that the contract was for the “ purchase of an entire crop of cotton then present, without reference to quantity, at a certain price per pound, all of which had been weighed by a public weigher, within seven days preceding.” No stipulation was made for a credit, but the money was to be paid when called for. There the cotton was in a deliverable state, and the purchaser authorized to take the actual possession at pleasure; tvhile in the present *312case the purchaser was informed that the cotton was not all weighed, and it could not be delivered in less than two days. There is a most obvious difference in the cases, even upon the hypothesis that the order was accepted by the broker of the plaintiff in error, to enable him to take the possession of the cotton ; for in the one case it would become operative immediately upon its delivery, and in the other not until the cotton had been weighed.
The first charge supposes, that although the delivery order was sent to the broker on the day the contract was made, it did not vary the contract, and that it was still to be executed two days thereafter. The seventh charge is inconsistent with the first, and assumes that the jury in their discretion may infer an agreement to receive the cotton, according to the terms of the order, inasmuch as it was not promptly returned by the broker. This inference we have seen is not authorized, and the latter instruction was calculated to induce a verdict not in harmony with the law.
We infer from the bill of exceptions that it was shown to the Court, that Graham, the weigher and warehouseman was dead, that the book, the extract from which was offered as evidence, was the one in which he made the entry of the weights of so much of the cotton as was weighed, and that the book •itself was destroyed. These preliminary facts being established, the evidence was clearly admissible. The principle is now too firmly settled to require argument or illustration, that books of accounts kept by a deceased clerk, and all other entries or memoranda made in the course of business or duty, by any one who would at the time have been a competent witness to the fact which he registers, are admissible evidence. [2 Phil. Ev. C. & H. ed. 675, et post.] Where the book or memoranda containing the original entry is lost, then the rule which declares that the next best evidence attainable shall be received, makes the transcript from the book, supported as it was by the Oath of the witness who transcribed it clearly admissible.
It appears from the view ta'ken, that the Circuit Court erred in several particulars, which we need not recapitulate. The very extended consideration given to the law of sale in Magee v. Billingley, makes it unnecessary for us to add more in this case than to declare the judgment is reversed and the cause remanded.