Lyon v. Greorge

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 memher 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 ³⁰⁰ 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 had been allowed and paid by them to the agent, who immediately preceded him in their employment, upon all their glassware sold in the territory of his agency, whether the order went directly from him or not. He then offered to prove that there was a uniform custom and usage, among manufacturers of glassware, to allow their local agents commissions both upon goods ordered directly through such agents, and upon goods ordered by buyers, living in the territory of the agent, directly from the manufacturer. The admissibility of this evidence was objected to, but the Court overruled the objection and allowed the evidence to be given. Whereupon the plaintiffs excepted.

The defendant not being able to offer direct proof of the contract between himself and the plaintiffs, was seeking to establish it by indirect and circumstantial evidence. The usage offered in evidence, had certainly an important bearing upon the issue on trial. Where uniform and well established, it has been held to shape the contracts of parties, and serve as a guide to their true meaning and understanding. However well established, it may undoubtedly be controlled by a special contract, but in the absence of evidence of such special contract, ³⁰¹ where services are rendered, and a uniform usage is shown to exist in regard to such services, it will be presumed that they are rendered in accordance with the usage.

In the case of Given vs. Charron, 15 Md., 507 , the identical question arose. There the action was brought to recover for an alleged wrongful dismissal of the plaintiff from the employment of the defendant. No direct evidence was offered of the contract between the parties. But to show what the contract was, the plaintiff proposed to offer testimony of a usage among dry good jobbers, such as the defendant, in regard to the terms upon which they employed their clerks.

This Court speaking through Le Grand, C. J., say in regard to the admissibility of the evidence: “We think the testimony was properly ad- mitted. It was pertinent to the contract declared upon, and a