This is a suit brought by the appellant against the appellee on account. The complaint contained two counts, — the first for money due by account, the second for goods, wares and merchandise sold and delivered to the defendant. The defendant filed five pleas, — the first being the general issue, and the remaining four, special pleas. Demurrers were sustained on the 2d, 3d and 4th pleas, and overruled as to the 5th. This latter ruling constitutes the first assignment of error. The 5th plea set up as a defense to the action, a special contract between the plaintiff and defendant relative to the sale of the goods, and undertook to aver breaches of the same by the plaintiff. The contract is set out in full in the plea, and by its express terms a delivery of the goods to the common carrier is made a delivery to the defendant. There is no express stipulation that the plaintiff should pay the cost of shipment, further than the provisions contained in the contract, that the “Equitable Manufacturing Company to allow credits for freight on these goods.” This provision when construed in connection with other provisions in the contract, clearly implied that the defendant would, in the first instance, on receipt of the goods, pay the freight charges, and for which he should be allowed credit on the agreed price of the goods, the time of the payment being expressed, “net cost, 30 days,” and “discount 6 per cent, cash in 10 days.”
The provisions in the contract relative to the filing of the bond by the plaintiff was as follows: “Bond to be filed by the Equitable Manufacturing Company for $200.00 in First National Bank of Gadsden, that they will comply with their part of this agreement.” No time is specified, and consequently the law implies a reasonable time,within which the bond should be filed. The contract contained the further provision that, “a credit of more than 30 days is only allowed where account is closed in 10 days by note on 6, 8,10 and 12 months without interest, each for one-fourth of bill.” The plea among other things avers that the plaintiff “failed and refused to credit defendant with the freight on said aoods,” hut it nowhere avers that the defendant had ever *256paid the freight, and until he had paid the freight, he was not entitled to a credit for the same. Moreover, if he had so paid it, he would have been entitled only to claim it as an off-set to the account sued on. The plea does not deny that the plaintiff: filed a bond, but the averment is, that plaintiff did not file “the bond mentioned in sa/id contract/-’ This is open to the conclusion that the plaintiff filed a bond, but in the opinion of the pleader, it was not the bond provided for in the contract. Construing the pleading most strongly against the pleader, the averment in the plea, is the averment of a conclusion. The plea was faulty in these respects, as pointed out in the demurrer, and the court erred in overruling the same.
The defendant should not have been allowed, against the plaintiff’s objection, to testify to the,declaration of the cashier of the bank as to the bond. This was not a declaration made in the ordinary course of business so as to render it admissible. The deposit of a bond of this character, and for the purpose for which it was to be deposited, was not in the ordinary business course of a bank. The defendant’s testimony that he notified the plaintiff of his rescission of the contract was immaterial, and should have been excluded. The undisputed evidence of the plaintiff was, that plaintiff sent a bond through the United States mail to the Bank of Gadsden, and wrote the defendant in reply to a letter asking if plaintiff had filed the bond pursuant to agreement, that the bond had been sent to the bank at Gadsden, and asked the defendant to ascertain if the bank had received it, and if not to notify plaintiff, and another would be sent. To this letter the defendant made no response, and the plaintiff not hearing from the defendant, nevertheless sent another bond by registered mail to the Bank of Gadsden.
Under our view of the law of the case, as above expressed, there being no question as to the shipment of the goods under the contract, with the same evidence on another trial, with the 5th plea out, the plaintiff would be entitled to the affirmative charge. For the errors *257pointed out the judgment will be reversed and' the cause remanded.
Reversed and remanded.