
    *Gross, Myers & Moore v. Criss.
    July Term, 1846,
    Lewisburg.
    (Absent Brooke, J.)
    1. Custom — Admissibility to Alter Terms of Letter— Case at Bar. — A merchant in Philadelphia writes to bis debtor in Clarksburg, reminding bim that bis debt bas been due for some time; and saying; “We must reguest you to remit tbe amount.” Held. This did not authorize tbe admission of ’ evidence of a local usage or understanding, to give a meaning to tbe terms of tbe letter different from that which they obviously bore.
    2. Same — Remittance to Creditor — How Made — Question of,Pact for Jury. — Whether a remittance of money by mail is tbe usual mode, when a creditor directs his debtor to-remit money to him generally, without prescribing tbe mode, is a guestion of fact to be ascertained by a jury, and not to be decided by tbe Court. •
    
      
      3. Cieneral Direction by Creditor to Remit Money — At Whose Risk. — A general direction by a creditor to his debtor to remit money to him, without prescribing- the mode, does not authorize the debtor to remit by mail at the risk of the creditor. But such directions must be specific, both as to the mode of remittance, and the subj ect to be remitted, before it can be made at the risk of the creditor.
    This was an action of debt brought in the Circuit Superior Court of Harrison county, by Gross, Myers & Moore, merchants of Philadelphia, against Aaron Criss, a merchant in the county of Harrison. The action was founded on a promissory note, dated the 9th of July 1839, and payable at six months, for 347 dollars S3 cents, given by the defendant to the plaintiffs in Philadelphia, for goods there purchased of them. The defendant pleaded payment.
    On the trial, after the plaintiffs had introduced their proofs, the defendant introduced as evidence a letter from the plaintiffs to him, as follows:
    Philadelphia, June 29th, 1840.
    Mr. Aaron Criss.
    Sir, — Allow us to call your attention to your note due to us the 9th of January last. We are willing to make *every allowance for the times, but as we sold the goods on six months, and the bill has now been realty twelve months, we must request you to remit the amount. If we realty did not want the money we should not trouble you.
    Yours truly,
    Gross, Myers & Moore.
    He farther proved, that on the 24th of July 1840, he deposited in the post office at Clarksburg, the residence of the defendant, a sealed letter addressed to the plaintiffs in Philadelphia, containing 96 dollars in bank notes current in Clarksburg, and which were usually at that time received by merchants in Philadelphia for goods, and in discharge of debts. And he also proved, that said letter had been duty forwarded by mail for Clarksburg, to be applied towards the payment of the debt sued on in that case. And he farther offered proof, that it was the usage and custom of merchants in Philadelphia and Clarksburg, when a creditor merchant of Philadelphia instructed his debtor merchant of Clarksburg to remit to him on account of the indebtedness of the latter to the former, that such instruction implied that the remittance might be by the usual way of the public mail, and that the remittance would be at the risk of the creditor.
    To the introduction of this evidence of usage, the plaintiffs objected, but the Court overruled the objection; and suffered the evidence to go to the jury; and instructed the jury, that where a creditor directs his debtor to remit to him money generally, without prescribing the mode of remittance, that a remittance by mail, being the usual mode, will be at the risk of the creditor. To the opinion of the Court admitting the evidence, and to the instruction given to the jury, the plaintiffs excepted.
    *The jury found a verdict for the plaintiffs for the sum of 262 dollars 83 cents, with interest from 24th of July 1840, till paid; on which the Court gave judgment, and then the plaintiffs applied to this Court for a supersedeas, which was allowed.
    The cause was argued in this Court by Gee, for the appellants, and William A. Harrison, for the' appellee.
    
      
      The principal case is cited in Southwest Va. M. Co. v. Chase, 95 Va. 56, 27 S. E. Rep. 826; foot-note to Delaplain v. Crenshaw, 15 Gratt. 457.
    
   ALLEN, J.,

delivered the opinion of the Court.

It seems to the Court that the letter from the plaintiffs in error made part of the bill of exceptions, was not intended to make any change in the legal obligations of the parties; that the request to remit the amount without specifying the mode of remittance, or the subject to be remitted, did not authorize the debtor to transmit the amount to the creditor through the mail at the risk of the creditor; that the meaning of the terms used is plain and unequivocal, importing a demand of payment of a debt which had been due for some time, and nothing more; and it was not proper to admit evidence of a local usage or understanding, to give a different meaning to the terms of the letter. It therefore seems to the Court here, that the said Circuit Court erred in permitting evidence of such usage and custom between the merchants of Philadelphia and Clarksburg, in the bill of exceptions set forth, to go to the jury.

It also seems to the Court, that the instruction given to the jury, 1 ‘that where a creditor directs his debtor to remit to him money generally, without prescribing the mode, of remittance, that a remittance by mail, being the usual mode, will be at the risk of the creditor,” was erroneous, because first, the Court has assumed to decide the question of fact that a remittance by mail is the usual mode, instead of leaving it to the jury upon the proof, if the evidence had been proper; and secondly, in deciding as a question of law, that a remittance by mail *in pursuance of such general directions could property be made at the risk of the creditor: this Court being of opinion that such directions should be specific both as to the mode of remittance and the subject to be remitted, before it can be made at the risk of the creditor; and that in the absence of such specific directions, the request to remit generally imported no more than a demand of payment according to the legal obligation of the contract. Therefore reversed with costs; verdict set aside, and cause remanded for a new trial, upon which the evidence set forth in the first bill of exceptions as to proof of usage and custom as therein mentioned, is not to be received, and the instructions to the jury if asked for, are not to be given.  