(100 So.)

The evidence is without substantial con- fundamental distinctions between a loan seflict, and the only question here presented cured from the husband's creditor and one is whether there was proof sufficient to justi- secured from a third person who was withfy the judgment rendered. The note bears out interest in the fund; and the law looks date January 1, 1918, and is made due "one to the intention and result rather than the day after date." On this date and for many means employed in scrutinizing transactions years prior thereto defendant and A. W. of this character. In Lamkin v. Lovell, suBeck had been man and wife. At the time of pra, this court quoted with approval from the execution of this note by defendant, her the Court of Appeals of Kentucky in Third husband was indebted to the plaintiff in the Nat. Bank v. Tierney, 110 S. W. 293, 18 L. sum, of $4,000, evidenced by several promis- R. A. (N. S.) 81. The statute there under sory notes. The defendant knew that her consideration was similar to ours, and the busband was due the plaintiff this sum, and facts bear close analogy to the instant case. she signed the note at her husband's request, The following quotations from that authority stating "the plaintiff, Trost, wanted her are here directly applicable: note, and A. W. Beck asked her to sign it." She received no consideration of any character for the execution of this note. From the testimony of A. W. Beck, the husband, we set out the following pertinent excerpt:

"That he had had a conversation with Mr. Trost prior to the execution of the note by Mrs. Beck relative to the execution of the note to take care of his indebtedness. That Mr. Trost said he would be glad to extend the paper if Mrs. Beck would give her note instead of his note; that he, the plaintiff, would rather have her note than his note, and the plaintiff requested him to ask Mrs. Beck to execute her note; that he did so; that he made out the note and took it to his wife and requested her to sign it, and that she did so; and that he then returned the defendant's note to Mr. Trost; that upon giving the plaintiff his wife's

note the plaintiff returned his notes marked
'Paid' as shown by the indorsements thereon;
that plaintiff returned his notes and that he,
at the time they were returned to him, tore off
his signature. That he had kept these notes
returned to him in his possession ever since
that time. That Mrs. Beck's, the defendant's,
name was not signed to the notes given by
him. That after Mrs. Beck gave her $4,000
note and it was delivered to Mr. Trost, that
Mrs. Beck got no money, nor did she ever get
any money after the execution of the note by
her. That at the time of the execution by Mrs.
Beck of the note sued on his debt was owing,
and that he had gotten all the money repre-
sented by these notes, and that Mrs. Beck, his
wife, had gotten none of it.
That Mr.
Trost was pressing him for payment of the
notes and that in order to settle these notes,
or to surrender these notes into his possession,
Mr. Trost required, or requested the execu-
tion of a note by Mrs. Beck to take up these
notes of his."

*

It thus appears from the foregoing that the transaction resulting in the execution of this note by the wife was had directly with the husband's creditor, who was pressing the latter for payment, and who requested the husband to have the wife to execute the note. We are of the opinion that the principle embraced in the case of Lamkin v. Lovell, 176 Ala. 334, 58 South. 258, controls this cause adversely to appellant's contention.

In Staples v. City Bank & Trust Co., 194 Ala. 687, 70 South. 115, after citing the above authority, the court pointed out the

"When the creditor of the husband takes in satisfaction of his debt the obligation of the wife, the wife is in effect becoming the surety of the husband; and the creditor accepts her note with the intention of looking to her for its payment. The fact that it is the creditor of the husband * ** that he accepts the obligation of the wife in discharge of the debt of her husband * * is the essential thing that places his relation to the transaction in a different attitude from that of the person who, as an original business proposition, lends the wife money to do with as she pleases, and who derives no benefit or advantage, except such as grows out of the interest or profit he the wife executes her note to take up the may secure from the loan of the money. When debt of her husband, * meaning of the statute, assuming the debt of she is, in the another, the same as if her name was signed as surety to a writing promising to pay the debt. The form of the transaction will not be allowed to defeat the statute, when the substance is an evident attempt to evade it."

*

The case of Lamkin v. Lovell, supra, has met full approval in subsequent cases, and the principle of that authority was given full application in Staples v. City Bank & Trust Co., supra, as will, also, Elkins v. Bank or Henry, 180 Ala. 18, 60 South. 96; Peoples Bank v. Steinhart, 186 Ala. 205, 65 South. 60; Vinegar Bend Lbr. Co. v. Leftwich, 197 Ala. 352, 72 South. 538, and other authorities.

In Marbury v. Woolfolk, 186 Ala. 254, 65 South. 43, with reference to cases of this character, the court said:

"Usually the result turns upon the facts, and the usual question is whether, notwithstanding the form of the transaction, the wife has attempted to secure a debt entirely her husband's upon which she is not bound either separately or jointly."

We have carefully read and examined the authorities relied upon by counsel for appellant, among them Hall v. Gordon, 189 Ala. 301, 66 South. 493; Thornton v. Esco, 181 Ala. 241, 61 South. 255; Hollingsworth v. Hill, 116 Ala. 184, 22 South. 460; Sample v. Guyer, 143 Ala. 613, 42 South. 106. The facts in each of these cases, however, differ very materially from those in the instant case, and the conclusion here reached does not therefore conflict with any of these au

We look through form to substance, and, as by Code 1907, p. 1551, rule 75, the appellate has been previously said:

[1] There are many grounds assigned in the demurrer to the bill as amended, but Where the original and amended bill in only two are insisted on and argued in brief equity, filed by state pursuant to Acts 1919, of appellant. We will consider these, and p. 12, § 12, sought to condemn the same prop

erty and specifically described it, an amendment presume the appellant waived the other which did not change the property sought to grounds. Geiger v. Gillespie, 207 Ala. 528, be condemned, but merely made its description 93 South. 412; Shelby Iron Co. v. Cole, 208 more accurate, was not a departure. Ala. 657, 95 South. 47.

(100 So.)

"Lot 1 in block 844, according to the map and plat of the Bessemer Coal, Iron & Land Company, as recorded in the office of the probate judge of Jefferson county, Alabama."

[2] Appellant insists the bill as originally fore the court. The testimony appears in filed and as amended does not sufficiently the transcript in form of a bill of exceptions. describe the property sought to be con- This decree was rendered January 19, 1924. demned. The original bill described the prop- The bill of exceptions was presented March erty as follows: 13, 1924, and was signed by the judge on March 24, 1924. There is no note of testimony in the record, as rule 75, p. 1551, Code 1907, requires. Neither the complainant nor the defendant had the register to make a note of testimony, as this rule 75 requires. This rule applies to all cases tried in the circuit court in equity. The observance of it has been held to be exacting and mandatory. Neither the trial court nor this court on appeal can consider the testimony, when there this rule prescribes. When the trial court renders and enters a decree granting complainant relief, without a note of testimony as required by rule 75, the decree will be reversed by this court on appeal, as there was no testimony properly before either court to sustain the decree. Crews v. State, 206 Ala. 101, 89 South 205; Lunday v. Jones, 204 Ala. 326, 85 South. 411; Brassell v. Brassell, 205 Ala. 201, 87 South. 347 Hymes v. State, 209 Ala. 91, 95 South. 383.

And it further described the property as owned by the defendant, and that he, "on, to wit, October 3, 1923, had thereon a one-story house, or dwelling house, and that the said premises, with the improvements thereon, were in the possession of and occupied by the said respondent, and that the said respondent occupied and possessed said premises for a long time prior to October 3, 1923," and it averred "that the above-described premises are also within the jurisdiction of this court." This description of the lot is sufficient for it to be located and identified, and this ground of demurrer was properly overruled by the court. Acts 1919, p. 12, § 12; Johnson v. State, 205 Ala. 294, 87 South. 815; House and Lot v. State, 204 Ala. 108, 85 South, 382, 10 A. L. R. 1589.

is no note of testimony in the record, as

[5] But should the trial court render and enter a decree denying complainant relief and dismissing the cause without a note of testimony as required by this rule, then this court

no testimony properly before the court, and it was the only kind of decree that could be rendered by the trial court under the record and rule. Watson v. Kirkland, 204 Ala. 655, 87 South. 93; Saxon v. Parson, 206 Ala. 491, 90 South. 904; Winfield Lbr. Co. v. Southern Mfg. Co., 209 Ala. 614, 96 South. 756.

It therefore results that this decree must be reversed, and the cause remanded. Reversed and remanded.

[3] The complainant amended the bill by striking out these words, "Bessemer Coal, Iron & Land Company," where they appear therein, and by inserting in lieu thereof these words, "Bessemer Land & Improvement on appeal will affirm the decree, as there was Company's survey of the city of Bessemer." The appellant insists that this amendment worked a departure in the amended bill from the original bill as to the property to be condemned, and that the ground of demurrer pointing it out should have been sustained. This amendment did not change the property sought to be condemned by the original bill. This amendment simply makes more асcurate the description of it. The original and amended bill seek to condemn the same property, lot 1 in block 844, "with a one-story house or dwelling house thereon," owned, in possession of, and occupied by the defendant on October 3, 1923, and which the defendant possessed and occupied for a long time prior to October 3, 1923. The amendment simply showed this lot appears in map or plat of the Bessemer Land & Improvement Company's survey of the city of Bessemer," as is recorded in the office of the judge of I. Shipping 148-Dispatch money and adprobate of Jefferson county, Alabama, and not in map or plat of Bessemer Coal, Iron & Land Company. The court did not err in overruling this ground of demurrer assigned to the bill as amended. Buchanan v. Larkin, 116 Ala. 431, 22 South. 543, and authorities

supra.

[4] Did the court err in its final decree by granting relief to complainant by condemning the property, ordering it sold, and the proceeds of sale divided as the statute directs? The cause was tried on oral proof be

ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.

WYE SHIPPING CO., Ltd., v. HUNTER,
BENN & CO. (I Div. 297.)

Feb. 14, 1924.
(Supreme Court of Alabama.
Rehearing Denied May 22, 1924.)

dress commission held advancements and not payable on loading at par value of pounds sterling.

Dispatch money and address commission, to which charterer was entitled under charter party fixing amount thereof in pounds sterling, held advancements under provision for in

dorsement of advancements on bill of lading on

account of freight to be deducted when freight was paid, in view of other provisions of charter party and conduct of parties so construing the charter party, as against contention that dispatch money and address commission be

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

came due immediately on loading of vessel and
payable in pounds sterling according to the par
value thereof fixed by U. S. Comp. St. § 6537.
2. Shipping 39-Charter parties construed
according to intent of parties as manifested
by whole instrument.

Charter parties, like other contracts, must be construed according to the intent of the parties as manifested by the whole instrument rather than the literal meaning of any particular phase taken by itself.

3. Customs and usages 12(2)-Party not
bound by custom not so generally known as to
justify presumption that parties knew of it.
A party was not bound by a custom, in the
absence of a showing that custom was so gen-
erally known as to justify presumption that
parties knew of it.

4. Shipping 148-Charterer held liable for
amount wrongfully receipted for as advance-
ment, notwithstanding cesser clause.

Where charterer hired ship, which was

loaded with its own freight, under charter party stipulating for payment of specified amount as freight, less advancements indorsed on bill of lading, and making charterer primarily liable for freight money, held, that charterer was liable for an amount which it required the master to receipt for, as an advancement, under protest, notwithstanding provision of charter party that charterer's responsibility should cease to exist on shipment of cargo and signing of bill of lading.

St. Petersburg standard hundred of 165 cubic feet measure; that the said steamship was duly loaded with the said cargo furnished by the defendant, and said cargo was duly transported by the plaintiff in said steamship to London, Christie's Wharf, Charlton, in accordance with the said agreement; that, although plaintiff duly delivered said cargo as aforesaid, and complied with all. the terms of its agreement with the defendant, the defendant nevertheless has failed to pay the plaintiff for transporting said cargo, in accordance with the terms of said agreement, the sum of 944 pounds, 10 shillings, 9 pence, which according to the rate of exchange then current amounts to $3,888.15, which with the interest thereon the defendant has wholly failed to pay to the plaintiff; wherefore the plaintiff sues the defendant for $3,888.15 damages, with the interest thereon, as aforesaid."

The charter party, the basis of the suit, is in part as follows:

by the shippers of the cargo on the form in"(6) The bills of lading shall be prepared

dorsed on this charter."

"(9) The freight to be paid in cash without discount, less the advance, if any, on right and true delivery of the cargo, but the receivers of the cargo are to pay on account of freight during delivery, if on the continent, in cash at the rate of exchange current on the day of steamer's arrival for short sight Banker's

Bills on London."

"(13) The master or owners to have an ab

5. Evidence 408(1)-Indorsement on bill of solute lien upon the cargo for all freight, dead lading held subject to explanation.

freight, demurrage, and average, and, should the receiver require the cargo to be delivered overside or at a place where the owners cannot exercise their lien, then the approximate freight, etc., to be paid during delivery.

"(14) The vessel to be consigned to charterers or their agents at the port of loading paying them 21⁄2 per cent. address commission on the estimated amount of freight."

"(20) Charterers' responsibility under this charter shall cease as soon as the cargo is shipped and bills of lading signed, provided all the conditions called for in this charter have been fulfilled or provided for by bills of

Appeal from Circuit Court, Mobile Coun- lading." ty; Saffold Berney, Judge.

Action on the common counts and for breach of charter party by the Wye Shipping Company, Limited, against Hunter, Benn & Co. Judgment for defendant, and plaintiff appeals. Reversed and rendered.

Inge & Bates, of Mobile, for appellant. Smiths, Young, Leigh & Johnston, of Mobile, for appellee.

GARDNER, J. The Wye Shipping Company (appellant here) is a corporation with Count 7 of the complaint is as follows: its principal place of business in London, "(7) The plaintiff claims of the defendant the England. Hunter, Benn & Co. (defendant to further sum of $3,888.15 damages, with the in- this action) was a corporation engaged in terest thereon, for the breach of an agreement the export lumber business at Mobile, Ala. in writing entered into by it with the plaintiff In November, 1920. the plaintiff was the on or about, to wit, the 19th day of Novem- owner of the steamship called the "Wye ber, 1920, in substance as follows: The plain- Tempest," and in said month entered into a tiff, which was the owner of the steamship call-written charter party with the defendanted 'Wye Tempest,' agreed to transport for the defendant in said steamship from Mobile, Ala., to London, Christie's Wharf, Charlton, a cargo of pitch pine sawn sleepers to be supplied by the defendant, for which the defendant agreed to pay the plaintiff 15 pounds, 10 shillings per charterers a full cargo of pitch pine sawn

under the terms of which the said steamship was hired to the defendant for the purpose of proceeding from London to Mobile, at which latter point it was to receive from the

(100 So.)

sleepers. This cargo was to be transported The steamship with its cargo duly arrived from London, and there delivered at Chris- at London, Christie's Wharf, Charlton, about tie's Wharf, Charlton, the freight money to February 8, 1921. The cargo appears to be £15.10.0 per St. Petersburg standard have been delivered to Christie & Christie, hundred of 165 cubic feet measure. who paid the freight after deducting therefrom the £5,425.17.0 receipted on the bill of lading and embraced within the account advanced by the defendant. The bill of lading shows that the cargo was assigned to Price & Pierce, Ltd., "or their assigns, he or they paying freight." Plaintiff again protested against the items as to dispatch money and address commission, as increased by reason of the difference between the par and current rate of exchange, but of no avail; and hence this litigation.

Under certain provisions of the charter party the charterer was allowed a certain number of days in which to load the vessel, called lay days, and for each day the vessel was detained by the charterer beyond the lay days the charterer was due to pay demurrage to the vessel at the rate of £200 per day. On the other hand, however, if the charterer did not consume all of the lay days, and the vessel was sooner loaded, the days so saved by the charterer are called dispatch days, and for which it was obligated to pay the charterer the sum of £100 per day so saved in loading the vessel. This is called dispatch money. Under section 14 of the charter party the charterer was entitled to 22 per cent. address commission on the estimated amount of the freight, and in making up their account against the vessel the defendant fixed the estimated amount of freight at £15,428.10.6. In loading the vessel there was saved 23.4875 days which, at £100 per day, placed the indebtedness of the ship to the charterer at the sum of £2348.15.0.

The complaint consists of common counts, including account for money had and received, and also No. 7 rested upon a breach of the charter party as to payment of the freight, heretofore referred to. The cause was tried before the court without a jury; the evidence being both by deposition and oral testimony, resulting in a judgment in favor of the defendant-from which the plaintiff has prosecuted this appeal. As previously shown, the only questions involved relate to the dispatch money and address commission; and these only to the extent as they were increased by reason of the difference between the par and current rate of exchange.

The defendant insists that, as no time was fixed by the charter party for the payment of the dispatch money and address commission, this indebtedness became due immediately, citing Peck v. Ashurst, 108 Ala. 429, 19. South. 781; and that, as the charter party fixed no place of payment, the debt was payable at Mobile, the residence of the creditor. Mayberry v. Leech, 58 Ala. 339, among other authorities cited. Proceeding upon this line of reasoning the defendant argues that this money was due immediately upon the vessel being loaded, and payable at Mobile in pounds sterling; and that, as the parties had the right to fix by their contract a payment of such medium as they chose, the plaintiff in this action could not insist upon a right to discharge the debt in United States currency; that the par value of a pound sterling was fixed by Act of Congress at $4.8665. U. S. Comp. Stat. § 6537.

This account discloses that this dispatch money was converted into dollars by the charterer at the rate of $4.86% to the pound, which was the par rate of exchange, making the sum of $11,430.58. The address commission which amounted to £385.14.3 was likewise changed into dollars at the par rate of exchange for $4.86%, making the sum of $1,877.12. The dispatch money was then again converted into pounds at the current rate of exchange of $3.75 to the pound, making £3,048.3.0. By such a change therefore the dispatch money was increased from £2348.15.0 to £3048.3.0, or an increase of £699.8.0, which at the current rate of exexchange of $3.75 amounted to an increase of $2,622.69. The address commission was likewise increased £113.18.9, which at the current rate of exchange amounted to an increase of $427.17. The total increase by reason of the difference between the par and the current rate of exchange was £713.6.9, or the sum of $3,049.86. This account being presented to the master, he objected to this rate of exchange, but, after some discussion [1, 2] We have considered this argument with the defendant's representative, signed with due care, but find it at variance with, the account under protest. The total amount our construction of the contract which the of this account on January 22, 1921, was parties have entered into. As said by the £5425.17.0. The defendant prepared the bill Supreme Court of the United States in of lading, and had indorsed thereon the fol- Crossman v. Burrill, 179 U. S. 100, 21 Sup. lowing: Ct. 38, 45 L. Ed. 106, charter parties, like "Received on account of freight, five thou-other contracts, "must be construed accordsand four hundred twenty-five (5,425) pounds, ing to the intent of the parties as manifested seventeen (17) shillings and no pence, on which commission and, insurance have been by the whole instrument, rather than the paid. literal meaning of any particular clause,

"£5,425.17.0.

T. Merifield, Master." taken by itself."