Cook v. Enterprise Transportation Co.

RÚGG, 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, the 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 cer *10 tain time is relevant.” To this the judge 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, one 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 exception was taken, the judge 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. Unless this is done, the record is bare of any indication that harm was done by the ruling.

As to the first inquiry excluded, the statement of defendant’s counsel hardly amounted to an offer of proof. But if what occurred be treated as an offer of proof, the exclusion does not appear to have injured the defendant. Its defence, as revealed by the record, appears to have been, not that no contract whatsoever was made, but that a different contract was made from that alleged by the plaintiff. The plaintiff contended that a definite contract for the fixed term of one year was made, while the defendant asserted that the hiring was for an indefinite time. The statement of the defendant’s attorney was apparently of a custom of hiring for a certain time and not for an indefinite period, which would tend to support the plaintiff’s view rather than that *11 of the defendant. Therefore, its exclusion eannot have wrought any wrong to it. No offer of proof purports to have been made respecting the excluded question to Brown, so that the exception to this ruling must be overruled. As to the excluded questions addressed to Trainor, where exception was taken, no offer of proof was made, so the exception must be overruled, while, as to the inquiry respecting which an offer was made, no exception was saved; hence no question of law is before us. But even if the rights of the defendant had been fully saved, the offer, as to a custom, was too general and indefinite to be of any aid in passing upon the issues raised. It was not enough confined in substantial respects to bear upon the issues on trial.

Exceptions overruled.