Blair v. Laflin

| Mass. | Oct 27, 1879

Gray, C. J.

The Gen. Sts. e. 115, § 7, requiring that exceptions shall be “reduced to writing, and filed with the clerk, and notice thereof given to the adverse party,” as well ■ as presented to the court, before the final adjournment of the term, and within three days after the verdict or ruling, or within a further time allowed by the court, do not prescribe the manner of giving such notice to the adverse party, whether by personal service, or by leaving at the place of abode or business of himself or his attorney, or otherwise. It is therefore a matter which it is within the power of the courts to regulate by general rules. Gen. Sts. c. 115, § 4. Joannes v. Underwood, 6 Allen, 241.

The 36th rule of the Superior Court requires, in the same words as the statute, that exceptions shall be “ reduced to writing, and filed with the clerk, and notice thereof given to the adverse party,” within the time prescribed; and the 22d rule provides that “ all notices required by, or given in pursuance of, these rules, shall be in writing, and may be proved by an affidavit of the party, or his attorney, to a copy thereof, and setting forth that the same was delivered personally to the adverse party, or his attorney, or deposited in the post-office, directed to him, postage prepaid.” This is a reasonable rule, and makes the depositing of a notice in the post-office, within the time limited, equally effectual with personal service thereof within the same time on the adverse party, in the case of exceptions, as it would be for the purpose of charging an indorser of a promissory note or bill of exchange. Grand Bank v. Blanchard, 23 Pick. 305. Housatonic Bank v. Laflin, 5 Cush. 546. St. 1871, c. 239.

The depositing of the notice, within the time limited, in the post-office of the town in which the attorney of the excepting party resided and within the county in which the court was held, addressed to the attorney of the adverse party at the place of his residence in the same county, was therefore a sufficient notice, and the exceptions were rightly allowed. In Conway v. Callahan, 121 Mass. 165" court="Mass." date_filed="1876-10-25" href="https://app.midpage.ai/document/conway-v-callahan-6418665?utm_source=webapp" opinion_id="6418665">121 Mass. 165, cited for the plaintiff, the notice was not deposited in the post-office until after the expiration of the time prescribed.

But we are of opinion that none of the exceptions urged in argument can be sustained.

The evidence offered to show that the plaintiff had falsely represented that he was a “ first-rate salesman,” was rightly rejected as immaterial. Such a general statement, by way of self-commendation, unaccompanied by affirmation of any specific fact, and without evidence that the words used had acquired a precise and definite meaning among men of business, was not a representation of fact on which the defendants had a right to rely.

By the contract between the parties, the plaintiff, subject to the oversight and control of the defendants, was to devote his time and attention for one year to the performance of the duties of general superintendent of their works, including the appointment of agents to sell the goods manufactured, although he might himself make such sales; and was to receive not only a fixed salary, but also a certain commission “on the gross amount of all sales made for said ” defendants, which was evidently intended to embrace sales made for them by other agents, as well as those made by the plaintiff himself.

Commissions on all the sales during the year, though not payable until after the action was brought, were rightly permitted to be taken into consideration by the jury in estimating the damages sustained by the plaintiff by being wrongfully discharged from the defendants’ employment. Revere v. Boston Copper Co. 15 Pick. 351. Dennis v. Maxfield, 10 Allen, 138.

Exceptions overruled.