175 Mass. 358 | Mass. | 1900
This is an action brought by the plaintiff to recover from the defendant compensation for his services as a travelling salesman, at the rate of $100 a week, from the fourteenth day of October, 1896, until the first day of January, 1897, claimed to be due under a written contract by which the defendant employed the plaintiff as a travelling salesman in his •business, and in which it was provided that the “ service so to be rendered are [is] to be rendered by the party of the second part throughout the New England States of the United States.”
One of the defences set up was that the plaintiff refused to go to New York, in compliance with the following request made by the defendant in a letter to the plaintiff dated October 19,1896 : “What we want you to do is to come to New York at once, as there is Eastern trade in town every day, and you could do better by staying here and waiting on them.” On the next day the plaintiff, who was then in Providence, wrote in answer: “ My contract with you provides that I shall render service in the New England States, and I am here waiting for you to fulfil your part of the contract, by sending me money for travelling expenses, so that I can continue to canvass for orders for your goods in the N. E. States. As I have notified you several times recently, I stand ready to carry out the terms of the contract and expect you to carry out your part of it, in all respects.” By the terms of the written contract between the plaintiff and the defendant, the defendant was to pay the plaintiff’s travelling expenses in addition to the sum of'$100 a week. At the trial, the plaintiff introduced in evidence the record of a former suit brought by the plaintiff
1. The plaintiff’s exception to the evidence of custom introduced by the defendant must be sustained. '
The defendailt was allowed to introduce evidence of a custom in the business in which the plaintiff was employed by the defendailt, namely, selling cloaks, for salesmen to take a trip at the end of January “ and then come back and wait on the trade in New York,” and then take a trip in the latter part of July and another in the latter part of September, and to be in New York “ whenever trade is in town.”
The contract in the case at bar provides, in terms which admit of no mistake, that the services to be rendered by the plaintiff are to be rendered in the New England States. The' contract was not to employ the plaintiff as travelling salesman for the New England trade; it was to employ the plaintiff “ as a travelling salesman,” and .to “ render such service as a travel-ling salesman as the party of the first part may require, which service so to be rendered are [is] to be rendered by the party of the second part throughout the New England States of the United States.” These provisions are in no way modified (as the defendant contends) by the general provisions of the second article, by which the plaintiff agreed to “ give his entire and undivided attention to the sale of the goods manufactured by the party of the first part and to the business of the party of the first part.” The purpose of that clause is to give the defendant the right to have all the plaintiff’s time devoted to his business; it does not modify the explicit provisions of the first clause specifying where the plaintiff’s services during that time are to be rendered.
This is' not a case where the contract contains any word or words which have acquired in the trade of selling cloaks a trade meaning different from their ordinary meaning, as in Mooney v. Howard Ins. Co. 138 Mass. 375, cited by the defendant. Neither is this a case where the custom added an incident to
2. The evidence of the plaintiff’s conduct prior to October 14, 1896, which was admitted as showing that the true construction of the contract required the plaintiff to be in New York “ whenever trade was in town,” stands on the same footing ; the conduct of parties is admissible to explain what is doubtful, never to contradict what is plain. In Allen v. Kingsbury, 16 Pick. 235, 239, Clark v. Burt, 4 Cush. 396, 399, and Jenks, v. Morgan, 6 Gray, 448, 449, such evidence was held not to be admissible because the contract was plain. When the contract is plain it also has been held that the party’s direct admission as to the proper interpretation of it is not admissible; Paine v. M’Intier, 1 Mass. 69; Brockett v. Bartholomew, 6 Met. 396; and in cases where the conduct of the parties under a contract has been admitted as evidence of the true interpretation of it, it has been admitted on the ground that the interpretation of the contract in question was doubtful. Winchester v. Glazier, 152 Mass. 316. Reynolds v. Boston Rubber Co. 160 Mass. 240, 245. Crafts v. Hibbard, 4 Met. 438. If the plaintiff in fact went to New York and waited on the trade wheto it was there, he did so voluntarily and not because this contract required him so
3. • The plaintiff’s exception to the introduction of the letters of June 7, June 14, and July 6 must be sustained.
By the previous suit between the plaintiff and the defendant, it was 'finally established that there was no arrangement made whereby the $100 a week was reduced to $50 a week. The defendant seeks to support the introduction of these letters, on the ground that, inasmuch as it appeared from these letters and other testimony that the plaintiff had not, prior to October 15, demanded more than $50 a week since the previous April, “his refusal to continue travelling unless he was paid $100 a week was unreasonable.” However unreasonable it may have been (if it was unreasonable) for the plaintiff to insist that the defendant should pay him at the rate of $100 a week, as he had agreed to do, it was his legal right to insist thereon as a condition precedent to his continuing to perform his part of the agreement, even if theretofore he had only asked for $50 a week. The admission of this evidence is not consistent with the charge to the jury that the judgment in the previous suit determined that no change was made reducing the sum from $100 to $50.
4. The plaintiff’s exception to the introduction of the conversation between the plaintiff, the defendant, and the defendant’s daughter in April, 1896, must be sustained.
By the judgment in the prior suit, it was finally determined that there was no reduction from $100 to $50, as the defendant and his daughter testified was agreed upon in the conversation which took place in April, 1896. The testimony as to that conversation, therefore, was prima facie inadmissible. The defendant contends that it had been made admissible by the plaintiff, because the defendant, on cross-examination, had asked the plaintiff whether he had made the claim that the goods which he was trying to sell for the defendant were defective, to which the plaintiff had answered that he had made that claim, and that he had' made it at the conversation in April, 1896 ; the plaintiff, on redirect examination, had asked the defendant whether the goods were in fact defective or not, with a view of explaining his small sales, and he testified that
The other exceptions raise questions which are not likely to arise on the new trial, and are not therefore considered by us.
Exceptions sustained.