There*was no error in overruling the defenant’s motion, that the court try the cause without a jury. The case originated in the justice’s court of precinct No. 3, Henry county, Ala. The cir-' euit court was without authority, in the absence of a waiver to that end by the plaintiffs, to try the cause without, a jury. The act referred to' by defendant, — as giving it a. light to a trial without! a jury, — provides for holding the circuit, court, of Henry county at Do-than, and prescribes the jurisdiction thereof, and regulates the proceedings therein.- — Acts, 1894-95, p. 98. Ms eighth section provides, “That whenever a civil cause is brought ini said Dothan Division of said circuit court, it shall be tried by the judge thereof without the intervention of a jury, unless the plaintiff when he brings the suit demands in writing on tlhe complaint a jury,” etc. This section lias’no- reference to suits commenced in a, justice’s court and removed, as this one was, by appeal into- the circuit court.
The case was tried in the circuit court, on appeal on a complaint filed therein, claiming the sum of $25, damages for the breach of a contract, by which the defendant re,cernid of the Oak -City Cooperage Company, at Ba,inbridge, Ga., on, to-wit, July 3, 1899, certain barrels which it agreed to deliver to- plaintiffs at Pansey, Ala., for a consideration, but which it failed to deliver to plaintiffs at that point.
, The pleas were the general issue1, and a. second special plea, setting up, in substance, that at the time of the issuance of its bill of lading and ever since,, Pansey, Ala., was and has been a. flag stalliion on defendant’s line of railroad, and defendant did not have at that time, nor since, any agent or depot at said flag station of Pansey, and avers that it delivered the barrels at said flag station, at Pansey, Ala., on the 4th July, 1899, by taking same from the car in which they were hauled and placing them on a small platform, or in a small house at its station' place at Pansey, making a complete delivery of tire same at Pansey, the- destination of said barrels.
Thompson, testifying that he was one of the plaintiff *235■firm, stated that Pansey was a flag station, to which, when freight was consigned, the charges were always prepaid by the consignor; that there was á small house or depot there, with a. platform around it and defendant usually delivered freight oni the platform, and that there ivas no agent at Pansey and had never been. He also stated that no barrels were put off there that day by the defendant. He ivas asked by counsel: “Did you ever receive these barrels?” to which question defendant objected as calling for illegal and immaterial evidence. The objection Avas well overruled by the court. If he had received them, the evidence was certainly relevant, and while, if he had not received them, it might not have been conclusive that they had not been delivered, it was proper evidence to be considered by the jury for whalti it Avas Avorth, in connection with all the other evidence, as tending to show that the freight had never been delivered at said station.
The evidence for the plaintiffs and the defendant was in direct conflict, — that for (the plaintiffs, that the barrels were never put off the train and delivered at said station, and that for the defendant, that they had been' delivered on the platform at said station.
There Avas nlo reversible error in the refusal of the count to« give charge 1 requested by defendant. It singles out, and give undue prominence to a single fact, and is argumentative.
The evidence being in conflict, the general charge, numbered 2, requested by defendant, was properly refused.
Affirmed.