Irwin v. Worcester Paper Box Co.

• Decision Date: 13 October 1923
• Parties: IRWIN v. WORCESTER PAPER BOX CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

246 Mass. 453

141 N.E. 286

IRWIN

v.WORCESTER PAPER BOX CO.

Supreme Judicial Court of Massachusetts, Worcester.

Oct. 13, 1923.

Exceptions from Superior Court, Worcester County; Nelson P. Brown, Judge.

Action of contract by William R. Irwin against the Worcester Paper Box Company for damages for breach of agreement to hire plaintiff to do carload trucking. Finding for plaintiff for $667.17, and defendant brings exceptions. Exceptions sustained.

Defendant excepted to the admission of evidence and to the denial of its motion that on all the evidence judgment should be rendered for it.

G. R. Stobbs, of Worcester, for plaintiff.

T. H. Sullivan, of Worcester, for defendant.

JENNEY, J.

The plaintiff sues in contract to recover damages because of the failure of the defendant to perform an agreement to employ him to do trucking. The defendant admits the existence of a contract relating to that subject, and the main contention is whether the hiring included all of such service as the defendant required for carloads of merchandise or only such as the defendant could not perform with its own vehicles. Benjamin Posner had rendered service of this kind; the plaintiff, after talking with him, had a conversation with his brother, Harry Posner, claimed to be the general manager of the defendant in which Harry Posner said that whoever bought the property which his brother employed in the trucking business would have all the defendant's work of that kind, and at a stated price. The plaintiff made the purchase, and testified without objection that he paid $575 for the equipment and as a bonus for the business.

[1] 1. Subject to exceptions, the plaintiff was permitted to testify that one week after his purchase he sold the horses, harnesses, and a sled included therein, for $365, and that the rest of the purchase was of no value. If the evidence was competent for any purpose, these exceptions must be overruled, as the ground of its admissibility does not appear, and as no request was made to limit its use. Whipple v. Rich, 180 Mass. 477, 63 N. E. 5;Hubbard v. Allyn, 200 Mass. 166, 171, 86 N. E. 356;Eldridge v. Barton, 232 Mass. 183, 122 N. E. 272;Leonard v. Boston Elevated Railway, 234 Mass. 480, 483, 125 N. E. 593.

[2] It was not admissible upon the question of damages. Other evidence admitted in behalf of the plaintiff supported his claim for loss of profits, and he was not entitled to receive compensation because of damages sustained by reason of expenditures for preliminary outfit. Mt. Pleasant Stable Co. v. Steinberg, 238 Mass. 567, 131 N. E. 295, 15 A. L. R. 749.

[3] Neither was the evidence competent as bearing on the question of what were the terms of the contract. It related to a transaction between the plaintiff and a third person. The existence of a contract was admitted; no proper inference could be drawn as to the terms of a contract to render such services because of the value of the property purchased to perform it, or because the plaintiff bought property not reasonably adapted to carry out his agreement, or which he did not need therefor, or because he paid for it a sum in excess of its value. No question of particular intent was involved. The value or cost of personal property was not on the facts in this case relevant either on the question of what was agreed to be paid for its use or for the use of other chattels in connection with personal services, nor to determine what services were included therein. Such evidence did not have any natural, necessary or logical connection with the inference or result that was sought to be established. See Commonwealth v. Jeffries, 7 Allen, 548, 566, 83 Am. Dec. 712. The case is not governed by the rule that the market value of property or services is admissible where the existence or terms of a contract are in issue, or, if the price is not in controversy, where there is a serious difference between value and the concededly agreed price, and where there is a dispute as to the identity of the property sold. See Wigmore on Evidence (2d Ed.) § 392 (3), and cases there collected. This testimony was incompetent and its admission harmful error.

[5] 2. The plaintiff testified that Harry Posner acted in behalf of the defendant in making the contract under which he claims. There was testimony given by the bookkeeper of the defendant who had had supervision of its books for a little over three years, that one Grady was its president, one Farrell treasurer, and Harry Posner vice president and general manager. So far as this evidence related to the officers of the corporation, apart from general manager, it was immaterial, and its admission did not constitute harmful error. The plaintiff conteded that the contract was made with Harry Posner acting only as general manager. G. L. c. 231, § 132.

So far as it included the fact that the said Harry Posner was general manager, the testimony fairly may be construed as a statement of fact rather than of opinion or of conclusion of law; it was the summing up of what that person had done...