The bill of exceptions does not say that the overruling of the demurrer to the complaint was excepted to. We will, therefore, not consider that point.
The important question in the case is the propriety of that charge of the court to which exception was taken.
The plaintiff, Ward, the intestate of the appellee, sued the defendant for damages for the non-delivery of seven bales of'cotton, stored at his warehouse on the 12th and 14th of March, 1866. Jennings, a witness for the defendant, testified that about the middle of February, 1866, the defendant, Ward, Green, and himself, were, at the warehouse of the defendant together, when Ward stated, in the presence and hearing of the others, that he had sold his *301thirty-three bales of cotton to Green, and thereupon, immediately, Green, in the presence and hearing of the defendant and Ward, directed him, witness, who was the manager of the warehouse, to ship said lot of thirty-three bales of cotton, as delivered, to Mobile ; that a portion of this cotton was in the warehouse at the time, and the remainder, including the cotton sued for, was brought there afterwards ; that, under the above direction of Green, he shipped all of the cotton to Mobile, without any notice or objection from Ward. The defendant testified that while the shipment of some of the cotton was being made Ward was present, and saw it, and made no objection to it, and that he had no notice of any objection until several months after all of the cotton had been shipped.
Yerdery, a witness for the defendant, testified that he, as agent of Green, bought this cotton from Ward, and directed its shipment as delivered at the warehouse ; that Ward had notice of it and did not object, but consented to wait for a short time for the balance of the purchase money. The defendant had given to Ward receipts for the cotton, the breach of which, as a contract, is the cause of this action.
' Upon this evidence, mainly, the court charged the jury, that if the several matters and things testified to by the witnesses, for the defendant, occurred after the execution and delivery to Ward of the two cotton receipts, on the 12th and 14th of March, 1866, the verdict ought to be for the defendant, but if before, it ought to be for the plaintiff; that nothing which occurred before the execution of the' receipts could bar the plaintiff’s right of recovery.
This charge, given first and repeated after others had been given, confined the jury to the single inquiry whether the facts testified to by the defendant’s witnesses occurred before or after the delivery of the two receipts. It declared the sufficiency of the testimony to sustain the defense, if afterwards, but nothing occurring before could defeat the complaint.
In this there was error. It matters not what contract had been made between Ward and Green. If Ward’s declaration, under the circumstances of its making, was *302calculated to mislead the defendant, and did mislead him as to his duty respecting the cotton, whether made before or after the receipts were given, it was his own misfortune, and ought not to be visited on the defendant. This was the inquiry for the jury, under proper instructions from the court. The giving of the receipts to "Ward was not inconsistent with the sale of the cotton by Ward to Green ; Ward needed them to prove his delivery of the cotton, and to settle with Green. If Ward’s conversation was addressed to the defendant or his agent, or intended to be heard by them, and he heard Green direct the agent to ship the cotton to Mobile as it was delivered, without objection either at the time or before the shipment, he has no ground of action. But if if was incidental and not addressed to them particularly, nor calculated to influence them, or did not mislead them, the defendant would be liable.
The loss of the written contract between Ward and Green was sufficiently shown to admit secondary evidence of its contents. — Sturdevant v. Gaines, 5 Ala. 435; Jones v. Scott, 2 Ala. 58.
The judgment is reversed and the cause remanded.