Edmund W. Holmes, Respondent, v. Samuel M. Pettingill et al., Appellants

Edmund W. Holmes, Respondent, v. Samuel M. Pettingill et al., Appellants. (Argued April 7, 1875; decided April 20, 1875.) This action was brought to recover commissions alleged to be due plaintiff for soliciting and procuring advertisements-for defendants, who were conducting an advertising agency. The evidence of the parties was in conflict as to the contract. The principal questions were disposed of upon the facts. After the examination of one of the defendants, who testified to making a contract with plaintiff, defendants offered to prove that it was not their custom to pay any canvassers except upon a particular contract for the advertising which they brought to the office, and that they dealt with plaintiff in this manner. This was rejected. Held, no error; that as both parties testified to a special contract, defendants’ custom could not vary or affect it; and it did not tend to confirm defendants’ testimony; that the latter part of the offer did not propose to show what the dealings of the parties actually were, but simply defendants’ preconceived views as to the basis thereof; that this could not affect plaintiff, as he was not concluded by defendants’ treatment of the contract, or their idea of the relationship between them. Wm. H. Leonard and Amos G. Hull for the appellants. Walter S. Cowles for the respondent. [MAJORITY — Folger, J.,] Folger, J., reads for affirmance. All concur. Judgment affirmed.