| Md. | Mar 7, 1876
delivered the opinion of the Court.
The appellants are manufacturers of glassware, in the town of Pittsburg, and in the year 1859 employed the appellee as an agent, to sell their glassware in Baltimore City and the District of Columbia. He continued in their employment until the year 1874. The present suit was brought to recover from him the amount of certain bills of exchange, drawn upon him by the firm and accepted, but which he now offsets by an account in bar for commissions. The only question in the case arises upon the account in bar, and that is, what are the terms of the contract under which the appellee acted as agent?
The contract was in parol, and was made with a memher of the firm since dead. In consequence of his death, the appellee became incompetent, under the Act of 1864, to testify as to the terms of the contract, and had to rely
It is admitted that the rate of commission to be allowed was five per cent., but the appellants claim that this is chargeable only on goods ordered through the appellee or sold by him, while he insists, that he was also to be entitled to a commission on all goods sold by them in the territory of his agency, whether through his intervention or not.
To sustain his claim, the appellee offered proof that he was the sole agent of the appellants in the city of Baltimore and the District of Columbia; that he had made sales of their goods to several dealers in those places ; and that commission had been allowed and paid by them to the agent, who immediately preceded him in their employment, upon all their glassware sold in the territory of his agency, whether the order went directly from him or not.
He then offered to prove that there was a uniform custom and usage, among manufacturers of glassware, to allow their local agents commissions both upon goods ordered directly through such agents, and upon goods ordered by buyers, living in the territory of the agent, directly from the manufacturer. The admissibility of this evidence was objected to, but the Court overruled the objection and allowed the evidence to be given. Whereupon the plaintiffs excepted.
The defendant not being able to offer direct proof of the contract between himself and the plaintiffs, was seeking to establish it by indirect and circumstantial evidence. The usage offered in evidence, had certainly an important bearing upon the issue on trial. Where uniform and well established, it has been held to shape the contracts of parties, and serve as a guide to their true meaning and understanding. However well established, it may undoubtedly be controlled by a special contract, but in the absence of evidence of such special contract,
mitted. It was pertinent to the contract declared upon, and a link in the chain of evidence, to establish a custom existing among dry good jobbers, as to the time for which they were to be understood as employing clerks, when nothing was said in regard to it.” In the case oi Renner vs. Bank of Columbia, 9 Wheaton, 548, evidence of the usage of banks in the District of Columbia, in regard to the day of demanding payment upon bills of exchange and promissory notes, was held to be admissible for the purpose of explaining the understanding of parties as to their contracts. This authority was recognized and followed in the case of the Bank of Columbia vs. Magruder, 6 H. & J., 180, and in the case of the Bank of Columbia, vs. Fitzhugh, 1 H. & G., 248.
The objection to the admissibility of the evidence, that its offer was not accompanied with an offer to prove that the usage was known to the plaintiffs cannot be sustained. The defendant was under no legal obligation to offer such proof. The contract was entered into with a member of the plaintiffs’ firm, since dead, and the knowledge of the usage, on his part, when the agreement to employ the defendant as agent was made, will be presumed in
The authorities which have been cited on the part of the appellants, to show that usage is inadmissible to explain contracts, are cases of special contract, established by direct proof, either in writing or by parol, and where from the terms of the contract, it was apparent that the parties had excluded the usage referred to. They differ widely from the case before us. Here no special contract is proven, and the' evidence of usage is offered as one circumstance, from which with others, a reasonable inference may he drawn, as to what the real contract was between the parties.
We concur with the Court below, and think the usage referred to in the offer of the defendant, was clearly admissible in this case.
The next question arises upon the prayer of the plaintiffs, which was refused by the Court.
The same rule of law is to be applied to this prayer, that would control the question of its rejection, if the case was on trial before a jury.
The fatal objection to the prayer is, that the Court is asked to weigh the evidence, and declare as a matter of law, that the evidence offered by the plaintiffs is entitled to more weight, than that which was offered by the defendant. The question at issue was the contract between the parties, and its terms were to be arrived at from all the evidence offered at the trial. The letters referred to in the prayer stand no higher than would parol admissions of the defendant, and the Court' can not assume in an instruction, which declares only the law of the case, that their contents and the testimony of the witness Boteler, cannot be reconciled with the evidence offered by the defendant. This is a question to be determined, when the
Judgment affirmed.