Suit was brought by the appellee to recoArer damages for the breach of a Avritten contract. The defendant was engaged in the saw mill business, and contracted with the plaintiff to cut a ditch from the mill pond of defendant to a point where “Soldiers Head Branch” emptied into the mill pond creek, and designated as the “Big Wasteway,” the ditch to be used for rafting of logs to the mill. The consideration for cutting the ditch, was the payment to Eldridge, the plaintiff, of twelve hundred dollars, and “the said Eldridge is to have full control of the running of any and all logs in said ditch at and for the sum of fifteen cents, for each log deliA’ered, and to deliver the logs as fast as the water Avill permit and the logs are banked. It is agreed that all logs knoAvn as lumber logs are to be run at and for the price of ten cents, and the said Eldridge is to haAre control of the running of the logs at the price above agreed upon for the term of three years from the completion of the ditch, etc.” The ditch was completed, paid for, and both parties, it seems, complied with the terms of the contract Avith mutual satisfaction for the *76first year. After that time, the ditch was extended a further distance to a point designated as Fletcher Wasteway. The evidence shows that the parties mutually agreed by parol, that plaintiff was to receive eighteen cents .a log for each log run from Fletcher Wasteway and fifteen cents a log for all logs run from the “Big Wastewav.” The law is settled in this State that a written contract may be modified or altered by a parol agreement, unless the contract is of that class Avhich by statute is required to be in writing. — Badder & Britt v. Davis, 88 Ala. 367. The plaintiff testifies positively that it Avas understood and agreed that the written contract was preserved and continued in force, and the defendant testifies that the written contract was rescinded upon the making of the new contract. The evidence show's that the plaintiff was discharged before the expiration of the three years, or at least ceased to work — whether for sufficient cause or not, is not raised by the record. The complaint declares upon the written contract, and the defense is, that the Avritten contract was rescinded by the making of the subsequent contract after the ditch was extended to “Fletcher Wasteway,” and that the original contract furnishes no cause of action. We have stated all the evidence that is material to the question. The court refused certain charges requested by the defendant, and which refusal is assigned as error.
The first five charges, though in different forms, involve but one question, and that is, whether under any phase of the evidence, the plaintiff was entitled to recover. We are of opinion that they Avere properly refused. It is true that in one part of the written contract, it is stipulated that for lumber logs only ten cents was to be paid per log, but the same contract provides in another place that plaintiff was to be paid fifteen cents for all logs from the “Big Wasteway.” The verbal contract provides that for all logs from the “Big Wasteway” plaintiff should receive fifteen cents per log, and from. Fletcher Wasteway eighteen cents. The parties might well agree that an additional three cents per log should be paid for running logs from Fletcher’s Wasteway to which place the ditch had been extended, and have continued in force the stipulation to pay fifteen cents for logs run from Avhere the first ditch termi*77nated. It is true that the defendant testified that the first contract was rescinded, and yet it is apparent from his own testimony, that he regarded some of its provisions binding and in force. And there is the evidence of the plaintiff, who testified unqualifiedly that it was expressly agreed, that it was to reniain in force. The evidence, considered as a whole, did not authorize the conclusion of law asserted in the charges requested.
The sixth charge was not warranted by the evidence. There was sufficient data from which the jury could reach a verdict.
The seventh charge seems to be abstract, but if not abstract, asserted an erroneous proposition of law. To have relieved the defendant from liability upon the grounds, that no logs were run through the ditch, it was incumbent upon him to show that had plaintiff been continued in his employment (conceding that he was' justified in quitting), the same result would have followed.
The court did not-err in admitting the testimony of the witness Bagley. Considering his testimony as a ay hole and in connection Avith the testimony of other witnesses, it tends to show the number of logs delivered at the mill during the year. The evidence shows that all logs supplied to the mill came through the ditch, that it ran regularly during the year, the capacity of the mill tended to shoAv the number of logs delivered.
Upon the motion for a new trial the facts show that the books, tally of logs kept, were under the control of the defendant. One of 'the vital questions at issue— as shown by the complaint — Avas the number of logs delivered. It Avas the duty of the defendant to have had his books and the tally in court during the trial. The defendant’s neglect or failure to have them present shows a Avant of diligence and cannot serve as grounds for a new trial.- — Kansas City v. Phillips, 98 Ala. 159. We find no error in the record.
Affirmed.