Lyon v. George

• Decision Date: 07 March 1876
• Citation: 44 Md. 295
• Parties: JAMES B. LYON and JOHN P. SCOTT v. ANDREW J. GEORGE.
• Court: Maryland Court of Appeals

44 Md. 295

JAMES B. LYON and JOHN P. SCOTT v. ANDREW J. GEORGE.

Court of Appeals of Maryland

March 7, 1876

APPEAL from the Court of Common Pleas.

This case was tried before the Court, without the intervention of a jury. The facts are sufficiently stated in the opinion of the Court.

Exception.--The plaintiffs offered the following prayer, which the Court, (GAREY, J.,) refused:

If the Court shall believe that the agency between the parties existed from 1859 to 1874, and that monthly statements were made between them, that the defendant was not usually allowed, and never demanded commissions on any sales made by the plaintiffs, other than those made directly through his agency, and further believe that the defendant knew the plaintiffs were so selling, without his intervention, in Baltimore and the District of Columbia, as testified to by the witness, Boteler, and shown by letters of the defendant then he should exclude from his consideration of the above case, all the evidence offered by the defendant, of usage.

The plaintiffs excepted to the refusal of their prayer, and the verdict and judgment being against them, they appealed.

The cause was argued before BARTOL, C.J., STEWART, BRENT, MILLER ALVEY and ROBINSON, J.

T Alexander Seth, for the appellants.

To make the evidence of usage admissible, it must sustain and justify the presumption that it was known to the parties, and that their contract was formed in reference to its existence. Foley vs. Woodside, 6 Md., 37; Rogers vs. Mech. Ins. Co., 1 Story, 607; 1 Duer on Ins., 253 to 265.

It should have been known to the trade in Pittsburg, where the appellants resided and carried on business. 1 Duer on Ins., 260.

The interpretation of the agreement by the parties themselves, as shown by their course of dealing during a period of sixteen years, and in which time about one hundred and ninety settlements were made, should have determined what was the contract, and no evidence of usage, however general or uniform, should have been allowed to change or alter it. The prayer of the appellants was therefore improperly rejected. 1 Duer on Ins., 258; Price vs. Evans, 26 Mo., 49; Rogers vs. Broadnax, 27 Texas, 238; Thompson vs. Thompson, 2 B. Monroe, (Ky.,) 166; Wilcoxen vs. Bowles, 1 La. Anna., 230; Perott vs. Wikoff, 1 La. Anna., 232; Commercial Bank vs. New Orleans, 17 Ibid, 190; Williams vs. McHattan, 16 Ibid, 197.

An express contract is always admissible to supersede, vary, or control a usage or custom, for the latter may always be waived at the will of parties. Not only is a custom inadmissible which the parties have expressly excluded, but it is equally so if the parties have excluded it by necessary implication. Insurance Co. vs. Wright, 1 Wallace, 456, 470; The Reeside, 2 Sumner, 567; 2 Parsons on Contracts, 546; Atkins vs. Howe, 18 Pickering, 16, 18; Bogert vs. Cowman, Anthon N.Y. R., 70.

However well established the usage might have been, there was evidence sought to be made available by the appellants' prayer, from which a jury might have found that by a long course of dealing, contrary to the custom of the trade, the parties had contracted without reference to it. The evidence of the appellee (a witness for himself,) as to the change in the course of dealing, was sufficient to have sustained the appellants' prayer.

Usages among merchants should be very sparingly adopted by Courts of Justice, as they are often founded in mere mistake, and still more often in the want of enlarged and comprehensive views of the full bearing of principles. Donnell vs. Columbian Ins. Co., 2 Sumner, 377.

Joseph P. Merryman and H. Clay Dallam, for the appellee.

The evidence was properly admitted by the Court. The appellee having shown that he was the sole and exclusive agent for the appellants in Baltimore and the District of Columbia, and that he was such agent at the time the sales were made upon which he claimed commissions, and the member of the firm with whom the original contract was made by the appellee having died, there was no way in which he could prove what the contract was, except by evidence as to the course of dealing, and evidence as to the general usage in such cases.

Where a usage is well established, it is as obligatory on the objects of its operation, as the general law; usage enters into contracts, becomes a part of them, and must be regarded in their interpretation. Bank of Columbia vs. Fitzhugh, 1 H. & G., 239; Bank of Columbia vs. Magruder, 6 H. & J., 172; Given vs. Charron, 15 Md., 507, 508; Powell vs. Bradlee, 9 Gill & J., 220; Renner vs. Bank of Columbia, 9 Wheaton, 588; Sewall vs. Gibbs and Jenny, 1 Hall, (N. Y.,) 602.

The evidence showed a general usage among all glass manufacturers, (not manufacturers of glassware in Baltimore, but throughout the country) having agents in Baltimore and Washington, to allow commissions as claimed by the appellee. The appellants had been selling goods in Baltimore and Washington for many years. It was therefore not incumbent upon the appellee to prove by direct evidence that this usage was known to the appellants--or to the trade in Pittsburg, Pennsylvania. Gunther vs. Atwell, 19 Md., 170; Register vs. Spence, 24 Md., 520; Dodge vs. Farn, 15 Gray, (Mass.,) 82.

Where a particular usage is presumed to be in the knowledge of the party, and enters into the contract, it becomes part of it, and must be regarded in the interpretation of it. Chitty on Con., 7 th Am. Ed., 82; 1 Smith's Lead. Cases, 4 Am. Ed., 584, (307); Merchants' Mutual Ins. Co. vs. Wilson, 2 Md., 217; 2 Taylor on Ev., secs. 1076, 1077; 1 Taylor on Ev., sec. 148; 2 Greenl. on Ev., sec. 251.

The Judge in the cause at bar, had all the functions of the jury, and by the judgment of the Court, he found the fact of usage fully established. It is for the jury to determine from the evidence whether a usage exists or not, and whether the parties contracted with reference to it, or not. Burroughs vs. Langley, 10 Md., 248; Appleman vs. Fisher, 34 Md., 540; Sutton vs. Tatham, 10 Adol. & Ellis, 27.

BRENT J., 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 member 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 at the trial upon other proof to establish what the contract was.

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...