224 Mass. 388 | Mass. | 1916
The exceptions are confined to the admission and exclusion of evidence. The fact that Clark had testified as a witness for the plaintiff before the auditor did not make him the plaintiff’s witness at the trial before the jury, and the defendant having subsequently taken his deposition he became its witness. The plaintiff accordingly was properly allowed in contradiction of Clark’s statements as a deponent to introduce portions of his evidence given before the auditor.
It appears that the defendant is engaged in the manufacture of “a waterproofing compound to be used in connection with cement work on buildings,” and the plaintiff contended that by a contract partly oral and partly by letter he was to act as agent for the sale of the product, and “the taking of contracts for doing work with said product” within the New England States, receiving as compensation on the sale of the product “such amounts above a certain stipulated figure as it was billed” to him with “a commission of fifty per cent ... on the profits of all contracts within said territory.” And, the defendant having failed in performance, the plaintiff sues to recover commissions earned, and damages for breach of the contract.
The ruling was wrong. Cohen v. Jackson, 210 Mass. 328. Harrigan v. Dodge, 216 Mass. 461. The only issue as to liability was the measure of Cassingham’s powers. While it was undisputed that he was authorized to engage the plaintiff to sell the product, yet he was not a general agent, and the question whether he had been authorized to promise a commission on the profits of the contracts was in controversy. The credibility of Cassingham as a witness, or of the proposed witness Davis, under the offer of proof, when viewed in the light of the correspondence previously referred to as well as the legitimate inferences of fact to be drawn from all the evidence, was for the jury under suitable instructions. If, however, they believed Cassingham’s version of the conversation when the plaintiff was engaged, no commissions had been promised, and the evidence excluded was clearly admissible to show the scope of Cassingham’s agency. Coleman v. Lewis, 183 Mass. 485. Record v. Littlefield, 218 Mass. 483, 486, and cases cited.
Exceptions sustained.