¶2It is insisted upon rehearing that the holding in this case that, if there was error in admitting plaintiff’s evidence as to custom, it was error without injury because of a certain charge given at the claimant’s request, is unsound, and we are cited to certain cases, hereinafter noted, as being contrary to the present holding. As said in the original opinion, this evidence tended only to establish an implied loan or conditional surrender of the cotton receipts, and this question could have had no bearing upon the existence vel non of an express loan, which the charge instructed the jury had to exist in order for the plaintiff to recover. This instruction, in effect, eliminated every issue from the case, except the existence vel non of an express agreement that the |30,000 advanced was a loan and to the establishment of which the custom could have had no bearing.
¶3As said in the recent case of Alexander v. Ala. W. R. Co., infra, 60 South. 295, the existence of an express contract excludes all room for an implied one. The charge in question did not merely charge out certain counts by number, but expressly postulated the only facts upon which the plaintiff could recover, and, in effect, told the jury that an implied agreement would not suffice, and we think this is a case in which this court can safely say that said charge and the verdict of the jury rendered harmless the admission of the evidence tending to establish an implied loan or conditional surrender of the receipts.
¶4The quotation from the case of Pace v. L. & N. R. R. Co., 166 Ala. 531, 52 South. 56, to wit: “Indeed, charges Y and Z, given at the request of the plaintiff, appear to have eliminated, as well as charges could, this evidence from the case. But erroneous rulings on the ad*519missibilitv of evidence cannot be cured by charges”— citing Harbour v. State, 140 Ala. 103, 37 South. 330. Wé think the use of the words that “erroneous rulings on the admissibility of evidence cannot be cured by charges” was inapt, and that the writer meant to state, not that the error could not be cured, but that the proper way to eradicate illegal evidence was not by charging it out, but by making seasonable objection to same, as this was the holding in the Harbour Case, cited. In other words, it was there held that the trial court would not be put in error for refusing charges seeking to eliminate evidence which should have been objected to when introduced. The court did not hold, however, that the improper admission of evidence could not be cured by oral or special charges eliminating it. On the other hand, the opinion further on in the Pace Case, supra,' recognizes that the error in admitting evidence can be cured in certain instances, and cites Stevenson v. Whatley, 161 Ala. 250, 50 South. 41, which is an authority in support of the present holding.
¶5The evidence improperly admitted in the case of Fidelity Co. v. Satterfield, 162 Ala. 294, 50 South. 132, was not eliminated, nor was the issue of payment, whichit tended to establish. The charge merely limited the evidence as not going to show payment, but to show ability to do so. The ability to make payment was but an indirect way to show that it was made, and the issue of payment was not eliminated by a charge limiting the effect of the evidence. The rule quoted from the case of Ala. Consol. Coal & Iron Co. v. Heald, 154 Ala. 595, 45 South. 686, is not in conflict with the present holding, except that the court declined to invoke the doctrine of error without injury, but did so upon the ground that, while the charge eliminated all counts but one, it was left to the jury to pass upon the applica*520tion of the evidence to the counts. Here the charge did not.put it to the jury to ascertain whether or not the evidence of custom applied to certain counts, but it postulated the only theory or fact upon which the plaintiff could recover, and, in effect, eliminated the issue of an implied loan or conditional surrender or delivery of the receipts. Moreover, the Heald Case, supra, was reversed on another point, also, and the application of error without injury on this particular point was not necessary as the case had to be reversed for another reason, and the court could have well omitted what was said as to error without injury, as the case could not have been affirmed even if the error in this one particular was cured. Moreover, the present holding finds support in the case of Stevenson v. Whatley, supra,a more recent case than the Heald Case, supra.