Swain v. Thompson

McCarthy, J. There is a marked dispute between the parties as to the terms and conditions of the contract. It is conceded that an agreement was made between them,, but they differ widely cas to its details. When the evidence is conflicting it becomes a question of fact for the jury, and all the circumstances were submitted tO' the jury under proper instructions by the trial justice. They, by then- verdict, have found that the contract was as claimed by the plaintiff, and we cannot disturb this finding' unless for some error of law. The question of the Statute of Frauds has been determined adversely to the appellants in the able opinion of Bischoff, J., in Haines v. Thompson, 2 Misc. Rep. 385, and this we must follow. [210] The objection sustained to evidence of a contract and terms thereof made with different members of the company was certainly correct. It was not the proper way of proving a custom or usage or understanding in the profession so as to be binding or form part of a contract. See Walls v. Bailey, 49 N. Y. 464, 468, 470. Each of these witnesses testified that the two weeks’ notice was specially agreed by each of them, and this was simply an effort to show that the defendant had made contracts with ■others; this was immaterial and not binding on the plaintiff. The question here is, what was the contract between the plaintiff and defendant, and whether there was any custom or usage" in the profession as to a notice and right of the defendant to terminate such engagements, and was the contract made with reference to, or with knowledge of, this custom or usage. The evidence proposed and objected to did not, as said before, tend in that direction. After a careful review and examination of the points suggested by the appellants, we are of the opinion that no error has been committed, and that this judgment should be affirmed, with costs. Ehblich, Oh. J., concurs. Judgment affirmed, with costs.