Cook v. Enterprise Transp. Co.

• Decision Date: 02 January 1908
• Citation: 197 Mass. 7,83 N.E. 325
• Parties: COOK v. ENTERPRISE TRANSP. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

197 Mass. 7

83 N.E. 325

COOK v. ENTERPRISE TRANSP. CO.

Supreme Judicial Court of Massachusetts, Bristol.

January 2, 1908

COUNSEL

John W. Cummings, Charles R. Cummings, and James Little, for plaintiff.

George E. Daniels, for defendant.

OPINION

RUGG J.

The plaintiff seeks to recover for breach of an express oral contract to employ him as captain of a steamboat for one year, at a salary of $1,500. The plaintiff introduced evidence tending to support his contention. The defendant's exceptions relate solely to evidence. One Brady, vice president and general manager of the defendant was asked: 'What is the custom in steamship circles with regard to hiring of men?' This inquiry was excluded upon objection, whereupon the defendant's attorney said 'It seems to me, where the contract is very ambiguous as to the time, that any evidence of a custom in hiring for a certain time is relevant.' To this the court replied: 'The plaintiff says that the defendant did hire him for a certain length of time and the defendant says that it did not and that presents an issue on a question of fact. I should exclude it.' Of one Brown, the defendant inquired: 'I should like to ask you what the custom was in steamship circles about hiring.' This question was excluded and the defendant excepted. When another witness Trainor was on the stand, this occurred: He was asked by defendant's attorney: 'Do you know what the custom is * * * in Fall River with regard to hiring captains and officers of steamboats?' Upon objection, this was excluded and exceptions were taken, the court remarking: 'Yes, this is the same question you have asked before.' The next question was: 'Do you know whether there is a custom which would be known generally to people employing officers of steamship companies?' This was excluded upon objection, but no exception was taken to the ruling, although the attorney then remarked: 'I offer this in evidence, first, as being the custom, showing the intention of the parties at the time this contract was made, and also as being corroborative of Mr. Brady's statement that there was no contract.'

It is a familiar rule of practice that ordinarily no exception can be sustained to a refusal to permit a question to be put unless the substance of the evidence which is expected in reply is stated to the court. Warren v. Spencer Water Co., 143 Mass. 155, 9 N.E. 527. Unless this is done, the record is bare of any...