NATIONAL SUPPLY CO. v. J. T. HORNE VENEER CO.

(81 South. 856) NATIONAL SUPPLY CO. v. J. T. HORNE VENEER CO. (6 Div. 496.) (Court of Appeals of Alabama. April 8, 1919.) 1. Sales &wkey;>85(3), 168%(10> — Contracts — Construction. Where plaintiff shipped to defendant one-half a barrel of boiler compound under an agreement that a 99-day trial should' be given, and, if unsatisfactory, the same should be returned and no charges made, defendant was bound to make the 90-day test, and, as the compound had to be consumed in making the test, defendant, where it proved' unsatisfactory, was not liable for any charges or to return the compound, though the whole was consumed. 2. Trial <&wkey;256(2)~--Instructions — Request. Where a charge was not erroneous, though it might have been misleading, a party, if not satisfied with it, must ask an explanatory charge in order to predicate error thereon. <S=^For other cases see same topic and KEY-NUMBEE in all Key-Numbered Digests and Indexes Appeal from Circuit Court, Tuscaloosa County; Henry B. Poster, Judge. Action by the National Supply Company against the J. T. Horne Veneer Company. Prom a judgment for defendant, plaintiff appeals. Affirmed. W. J. Monette, of Tuscaloosa, for appellant. Edward DeGraffenreid, of Tuscaloosa, for appellee. [MAJORITY — SAMPORD, J.] SAMPORD, J. Plaintiff shipped to defendant one-half barrel of boiler compound, “Guaranteed, ninety-day trial, same, if not satisfactory, to be returned and no charges made.” The character of the compound was such that to be used it had to be consumed, and, if the whole of the shipment was used within the 90 days, then a return of any part of the shipment became impossible. The acceptance of the compound was subject to the approval of defendant after a test of 90 days. Under the contract the shipment could not have been rejected without this test (Manchester Sawmill Co. v. Arundel Co., 197 Ala. 505, 78 South. 24), and if in good faith the defendant used the entire shipment within the 90 days in making the test, which proved unsatisfactory, then the defendant would be under, no obligation either to return the compound or to pay for same. This was in effect the charge of the court to the jury "to which exception was taken, and was without error. While the charge of the court may have been misleading, it was not erroneous, and if the plaintiff was not satisfied, it should have asked an explanatory charge. Daniel v. Bradford, 132 Ala. 262, 31 South. 455. The evidence was in conflict, and therefore the general affirmative charge as requested by the plaintiff was properly refused. There is no error in the record, and the judgment is affirmed. Affirmed.