#### JOHN M. MOREHEAD v. JOHN L. BROWN et al.

Where there are two counts in a declaration, and evidence given on both, and a general charge by the Court on the facts applying to each count, a general verdict on both counts, is not erroneous.

*368In a question of diligence and ordinary care, in the storing and keeping of cotton, it is competent to prove the custom of the place where the contract was made, as to the manner of storing- and keeping that article there.

Where a Judge, in the progress of a trial, erroneously decided against the reception of evidence as to a certain fact, but afterwards, in giving instructions to the jury, told them to consider the fact as proved, and to give the party, offering it, the full benefit of it, in making- up their verdict, it was Held not to be a ground for disturbing the verdict.

Whore a bailee, to store and keep cotton, for hire, permitted it to remain with the roping off, the bagging torn, the cotton loose and the under bales in the mud and water, so as to become stained, and much of it destroyed, it was Held to bo a want of ordinary care, which made the defendants liable for damage to the commodity.

AotioN of assuMpsit, as bailees, tried before Caldwell, J.. at the Spring Term, 1859, of Guilford Superior Court.

The plaintiff declared on two counts, one against the defendants as bailees, to keep a quantity of cotton in store, for Irire, at a fixed price, and the other, upon a special contract to cover the cotton, so as to protect it from the weather.

There was no dispute as to the fact, that the defendants had ♦agreed, for hire, to keep the plaintiff’s cotton in an enclosed lot in the town of Charlotte. In March and April, 1851, the defendants received the greater portion of plaintiff’s cotton, amounting to 350 hales, and placed it in an open lot, but it was not covered during the time it remained there.

The cotton was mostly from South Carolina, and was, ranch of it, in had order when delivered to the defendants, for the want of roping, and the bags being torn and rotten. The summer, it was proved, was a very wet one, in consequence thereof, the cotton was much wetted. That next to-the ground had been placed on poles, laid at intervals on brick bats; but as the ground became soft, from the continued moisture, the poles sank under the ground, and the lower bales were wet-ted and stained, much of it became rotten, and was unfit for any use whatever. It was in evidence, that the cotton was injured to the extent of 50 or 60 per cent. There was evidence also, that tho defendants agreed to receive the plaintiff’s cotton and to keep it covered,.

*369The defendants proved that the plaintiff, for several months in the spring, had limited them to the price of 75 cents per hundred for hauling the cotton to Leaksville ; that the price was lower than the wagoners were willing to take, and in consequence thereof, the cotton was delayed in the hands of the defendant^, and that it was not until the plaintiff offered one dollar for the service, that it was sent on, which was in the summer and fall ensuing. The defendants offered evidence, going to show, that there was a custom in the town of Charlotte, at the time this commodity had been received there, to store it.without covering; tiiis evidence was objected to and ruled out, there being no evidence that plaintiff had knowledge of any such custom. Afterwards, the Judge, in charging the jury, told them, that on consideration, he had come to the conclusion, that the evidence offered by the defendants, as to the custom of storing cotton in the town of Charlotte, was proper for their consideration, and that they ■were to take it as if the fact had been proved, as alleged by the defendants, and act upon it accordingly. The defendants excepted to the exclusion of the testimony offered.

Iiis Honor charged the jury, that it was for them to say, whether the special contract had been proved as alleged, and if so, to give the plaintiff damages for the injury they believed had ensued from the fact of the cotton being left so long uncovered. He also charged them, that the defendants were guilty of negligence in permitting the cotton to sink down into the water and mud, and to remain in that condition without removing it themselves, or informing the plaintiff of it. Defendants’ counsel again excepted.

Yerdict for the plaintiff. Judgment and appeal by the defendants.

Fowle and Morehead, for the plaintiff.

MeLean and Gorrell, for the defendants.

Battle, J.

If there be two distinct counts in a declaration, and the plaintiff offer evidence on one of them, only, and *370not on the other, and the Court instructs the jury on both., a general verdict on both will be erroneous, for the manifest reason, that it does not appear that the verdict was not given, in part at least, upon the count on which there was no evidence. But if, in such a case, the Court charge the jury only on the count on which the evidence was given, the general verdict will be taken to have been rendered on that count only, and will not, therefore, be erroneous; Jones v. Cook, 3 Dev. Rep. 112. In the case now before us, there was evidence given, tending to support both counts of the declaration, which prevents the general verdict from being wrong, unless his Honor committed an error in admitting or rejecting testimony, or in his instructions, in relation to one, or both of the counts.

The counsel for the defendants contend that he did err in rejecting the testimony offered by them to prove that it was the custom, in the town of Charlotte, to store cotton bales without covering them, and that the error was not cured by his telling the jury, after the arguments were closed, that they might regard the testimony as having been admitted, and might take it into consideration in making up their verdict. The question then, is, was the testimony admissible, and if it were, was the error, committed by his Honor in rejecting it, corrected by the course -which he pursued afterwards in relation to it.

We are decidedly of opinion that the proof of the usage was admissible, as is abundantly shown by the authorities referred to by the defendants’ counsel. Story on Bailments, 9, 10, 256; Moore v. Eason, 11 Ired. Rep. 568. The case of Winder v. Blake, 4 Jones’ Rep. 332, cited by the counsel for the plaintiff, is not in opposition to this doctrine. Although no special custom can be recognised as having grown up in this country, the effect of which is to supersede the common law, yet a custom or usage relating to the trade or business of a particular place, where a contract is entered into, may be shown, for the purpose of annexing incidents to, and explaining the meaning of terms used in such contract; Moore v. Eason ubi supra; Hutton v. Warren, 1 Mees, and Wels. 466.

*371From this it appears, that his Honor erred in rejecting the testimony offered to prove the usage of the town of Charlotte, in relation to the manner of storing cotton bales; and the question remains whether, upon becoming satisfied of his error, he took means, which were effectual for removing it. Upon reflection, and after some hesitation, we are satisfied that he did; and that the defendants have no just cause to complain of the result. The ground upon which the counsel for the defendants contend that the error was not cured, is, that the course pursued by his Honor deprived them of their rights to address an argument to the jury upon the effect of the testimony, whereby a different verdict might possibly have been produced. The reply is, that the counsel did not ask permission to address the jury upon the effect of the testimony, after his Honor liad informed them that they might consider it as being before them. Had such permission been asked, even at that late stage of the trial, we have no reason to suppose that it would have been refused. Another reply is, that it is now settled, that even iu the trial of a capital case, it is not error in a Judge to permit witnesses, who have been previously examined, to be recalled and re-examined, under certain circumstances, after the jury had retired & consider of their verdict; State v. Silver, 3 Dev. Rep. 332; State v. Rash, 12 Ire. Rep. 382; State v. Weaver, 13 Ire. Rep. 491; State v. Noblett, 2 Jones’ Rep. 418. In none of those cases does it appear that the counsel for the prisoner addressed the jury after the witnesses had been re-examined; yet, we can plainly see that the exercise of a right to do so, would have been as valuable to them, in those trials, as it was in the case now under consideration.

Upon the whole, there is nothing shown in the errors assigned by the defendants, iu their bill of exceptions, by which we can discover that they were injured. It is stated, that there was testimony introduced by the plaintiff, tending to prove that the defendants had agreed to put the cotton bales under cover; and that, so far as we can see, was fairly submitted to the jury. /So, there was abundant testimony to show *372that the defendants, as common bailees, for hire, had not taken the same care of the cotton as a person of ordinary prudence would have done. There is not the slightest doubt that it was their duty, when the cotton bales, owing to the wet season, sank into the mud and water, to have had them taken up and put in a drier place. Eor the neglect to do this, they were responsible as bailees independent of any contract to have the cotton covered over.

Not being able to discover any error of law in relation to either of the counts, the judgment, upon the verdict, must be affirmed.

PeR Ctteiam, Judgment affirmed.