
    Waldrop & Thomas v. O. B. Crittended & Company.
    [66 South. 644.]
    Tbial. GonfAeting evidence. Question for jury.
    
    Where on the trial of a ease, the evidence is conflicting, a peremptory instruction should not be given.
    Appeal from the circuit court of. Bolivar county.
    Hon. Cutrer, Special Judge.
    Suit by O. B. Crittended & Company against Waldrop and Thomas. From a judgment for plaintiff, defendants appeal.
    The facts are fully stated in the opinion of the court.
    
      
      Jas. B. McDoivell and W. G. Hardee, for appellant.
    
      Sommerville $ Sommerville, for appellee.
   Smith, C. J.,

delivered the opinion of the court.

Appellees are cotton factors doing business in the city of Greenville. They instituted this suit in the court below to recover of appellants a balance of account claimed to be due them, one of the item of which is commissions for the sale of a lot of cotton sold by them for appellants. At the close of the testimony the court instructed the jury to find for appellees the amount sued for, and there was a verdict and judgment accordingly. When the cotton was placed with appellees for sale, appellants borrowed from them the sum of eight thousand dollars. According to appellees, it is the custom of cotton factors in Greenville and vicinity to charge a commission of two and one-half per cent, for selling cotton, and that such commission is always charged when advances are made by the factors to the owner of the cotton, and that this cotton was placed with appellees to be sold and commissions charged in accordance with this custom. According to the evidence introduced on behalf of appellant, however, there was a special contract with reference to commissions to be charged, which was that appellees were to receive fifty cents a bale for selling the short stapel cotton and one dollar per bale for selling the long staple cotton. The eight thousand dollars was borrowed from appellees at the time appellants claim that this agreement was made, and nothing whatever was said to them indicating that this fact would result in an increase in commissions to be .charged. This conflict in the testimony must have been overlooked in the court below, otherwise the peremptory instruction would not have been given.

Reversed and remanded.  