Himmel v. Levenstein

Boyd, C. J., delivered the opinion of the Court. This suit was brought in the Superior Court of Baltimore City by the appellant against Israel Levinstein and Joseph Lubin, trading as the Baltimore Shoe House. The amended declaration contains -six common counts and two special ³¹⁹ counts. On demand a bill of particulars was filed and exceptions to it were overruled.

A demurrer was then filed to- the amended declaration, but it was overruled and general issue pleas were filed. A jury was empanelled but a juror was withdrawn and the case was referred to an auditor. The report of the auditor, depositions taken before him, exhibits, agreement of counsel, etc., were filed, and the case was removed to the Baltimore City Court, where it was tried, resulting in a verdict in favor of Israel Levinstein, and this appeal is from the judgment entered thereon. Joseph Lubin was returned non e-sk, and the record shows that the appearance of the attorneys .was entered for Levinstein alone.

The demand for the bill of particulars and the demurrer were entered for “the defendants” instead of “the defendant,” and a motion was made and granted to amend those and all pleadings in which the word “defendants” was used, as it was done inadvertently and the attorneys had nó authority to appear for Lubin. The first exception was taken to granting that motion, and the second was to the Court’s ordering the jury to be sworn to try the issues joined between tbe plaintiff and Levinstein. We do not understand those exceptions to be pressed, and there would seem to he no difficulty about them. On the 23rd of June, 1910, an agreement was entered into between Israel Levinstein and Joseph Lubin, trading as the Baltimore Shoe House, and Maurice Himinel, all of Baltimore.

The body of that agreement is as follows, excepting we will number the paragraphs which was not done in the original: “(1) The party of the first part agrees to employ the party of the second part for one year or longer as hereinafter stated as a general man in the house or as salesman on the road in such territory as may be from time to time specified by the party of the first part, and when employed in either capacity he agrees to give his entire time and attention to the business of the Baltimore Shoe House. ³²⁰ “(2) The party of the first part agrees to allow the party of the second part a drawing salary of $2,000 a year, payable semi-monthly or monthly, the same to be based on a 5% commission basis on net amount of shipments of orders, less failures and sueb accounts which may be placed with attorneys1 for collection. “(3) The party of the first part also reserves the right to reject such orders as in their judgment are not acceptable or desirable accounts. “(4) The party of the second part agrees to accept the provisions of this contract, promises to abide by the same and also observe all the rules of the house. “(5) It is further agreed by parties of both parts that 60 days’ notice shall be given in writing when either desires to terminate contract after the end of one year from date herein stated, except this contract shall terminate by death or disability of party of either part from any cause whatsoever.” As there are fifty-four exceptions in the record, we will not attempt to discuss each one separately. The last one is numbered the 52nd and contains the rulings on the prayers. The 15th was abandoned, and there were inserted-the 42%, 43% and 49%, which account for the last being numbered 52. Exclusive of that and the first and second, .the others relate to rulings on evidence.

First—What we have designated paragraph (2) is the one which presents the most important questions. It will be observed that nothing is' said in the written contract about traveling expenses, but the plaintiff contends that there was a verbal agreement between him and the firm by which it was agreed that he was to be paid those expenses, while the defendant denies that such an agreement was made and relies on what he claims to have been a general trade custom in the shoe business in Baltimore, by which salesmen working on a 5'% commission pay their own expenses. Whether or not what is called a “drawing salary” of $2,000 a year was to ³²¹ be in addition to the 5 % commission is also a matter of dispute, and evidence of the custom was introduced as to it. (a) It is conceded by the appellee that, inasmuch as the written contract is silent on the subject, if there was a verbal agreement that the firm was to pay the traveling expenses, then it would he inadmissible to offer testimony of usage or custom on that subject, but be contends that there was not such a verbal contract, and hence the testimony was admissible.

It may be well to say in passing that the plaintiff’s fifth prayer, which was granted as modified, expressly instructed the jury that if they found that the Baltimore Shoe House did through Lubin enter into an agreement with the plaintiff to pay him 5% commissions, together with all his traveling expenses, in addition to the drawing salary, then they should disregard all evidence tending to show a general custom in and around Baltimore requiring wholesale shoe salesmen receiving 5% commissions on sales to bear all their traveling expenses. The defendant’s first prayer in submitting* the question of the general custom or usage required the jury to find that there was no oral agreement or understanding between the parties as to traveling expenses, and his second in regard to- the drawing salary had a similar requirement. It is therefore clear that there was no attempt to vary the alleged verbal contract hv a custom or usage, but it was only in the event of the jury finding that there was no such contract that the evidence was to be considered. (&) The eighth, seventeenth, eighteenth, nineteenth, twentieth, twenty-first, twenty-second, twenty-third, twenty-fourth, twenty-fifth, twenty-sixth, twenty-seventh, twenty-eighth, twenty-ninth, thirtieth, thirty-first, thirty-second, thirty-third, thirty-sixth, thirty-seventh and thirty-eighlh exceptions relate to the question of usage or custom.

Without deeming it necessary to discuss those exceptions separately, we think it is clear that there was evidence of such custom. In addition to the testimony of the appellee himself, that of Messrs. Jandorf, Mills, Tubman, Cohen and Blum at least ³²² tended to establish a general and uniform custom or usage in the wholesale shoe business of Baltimore in reference to traveling expenses and a drawing salary. In Appleman v. Fisher, 34 Md. 540, 552 , Judge An vet said: “It would certainly have been competent to them, by express reference, to have adopted the usage in Baltimore as determining the nature of the contract, and we think it equally clear that if it be done by implied or tacit understanding, it is as much obligatory upon the parties as if incorporated into the contract itself.

The principle upon which usage or custom is applied 1» the interpretation of contracts is very familiar, and of constant occurrence. It may be resorted to in the absence of express stipulations, or where the meaning of the parties is uncertain or doubtful upon the language used, or where the usage of the trade or business to which the contract relates, or with reference to which it was made, may afford explanation and supply deficiencies in the instrument.” In Given v. Charron, 15 Md. 502 , Chief Judge Le Grand, in considering an offer of evidence of a custom among dry goods jobbers in the City of Baltimore, said: “We think the testimony was properly admitted. It was pertinent to the contract declared upon, and a link in the chain of evidence to establish a custom existing among dry goods jobbers as to the time for which they were to be understood as employing clerks when nothing was said in regard to it.” See also Lyon v. George, 44 Md. 295 ; Kraft v. Fancher & Brown, ibid., 204; Barker et al v. Borzone, 48 Md. 474 ; Biggs v. Langhammer, 103 Md. 94 . The general rule as to i! sages of different trades and professions is thus stated in 12 Cyc. 1044: “If there is a general usage applicable to a particular profession or business, parties employing an individual in that profession are supposed to deal with him according to that usage.

All trades have their usages, and when a contract is made with a man about the business of his craft, it is framed on the basis of its usage, which becomes a part of it, except when its place is occupied by par ³²³ ticular stipulations. But the customs and regulations of employers requiring notice of intention to leave the master’s service must, in order to affect the servant, be shown to have been known by the latter at the time of entering the service.” Even if there be any question about the knowledge of a party of the usage and custom or whether it was to be presumed, it was held in Patterson v. Crowther, 70 Md. 124 , that evidence of the custom or usag'e was admissible, even if no proffer was made to follow it up with evidence of such knowledge. The testimony offered in these exceptions was, therefore, admissible. (c) The third exception is not material and requires no comment.

In the fourth there was no error. As the offers in reference to non-shipment of statements made by Lubin were after the partnership had ended, and he was not a party to the suit, it was properly excluded. The fifth, sixth and seventeenth -were immaterial. The ninth was relevant, but the answer relieved, it, of injury, if it had not been.

There is no ground for reversal in the tenth, eleventh, twelfth, thirteenth, fourteenth and sixteenth. We have already referred to the exceptions numbered from the seventeenth to the thirty-eighth, inclusive, except the thirty-fourth and thirty-fifth, about which we have no doubt as to the correctness of the rulings. We see no special objection to the evidence in the thirty-ninth, but the question itself was somewhat argumentative, and the plaintiff got all the benefit of it he could have done if it had been answered. There was no> error in the fortieth.

The forty-first, forty-second, forty-second and a-half, forty-third and forty-third and a-half related to statements alleged to have been furnished by the witness for Ilimmel. Some of them perhaps carried the inquiry further than the rules of evidence permitted, but none of them are of a character which would justify the reversal of the judgment. The forty-fourth was useless but harmless. The forty-fifth was immaterial.

The forty-sixth, forty-seventh and forty-eighth referred to Mr. Meriean. The evidence in those ex- ³²⁴ eeptions would seem to have been admissible to contradict the appellee. He had testified that all of the salesmen who traveled on a commission basis of 5% were charged expenses and shortage and always had been. It may be true .that Mr. Merican was under a special contract, and hence was not governed by the custom or usage, but, if not, it was admissible evidence, and if such was the fact it could have been shown that he was under a special contract.

Even then it would have contradicted the broad statement made by the appellee and would have reflected upon the question whether there was such a general custom. That was very material and it was error to exclude the evidence. The question in the forty-ninth ought to* have been permitted to■ be answered. The subject was gone into by the defendant.

The forty-ninth