Holmes v. Pettengill

Headnote

Evidence of custom, not admissible to va/ry terms of special contract.

In an action, brought by the plaintiff to recover for service rendered in introducing customers to the defendants’ advertising agency, at the trial of which, both plaintiff and defendants swore to a special contract, under which the plaintiff did business for the defendants, although they did not agree as to its character, the following question was put by defendants’ counsel: “Are you acquainted with the custom of defendants’ house in resp ect to their dealings with canvassers ? ” and excluded by the referee. Reid, that its exclusion was proper; that evidence was not admissible to show that the house had a custom in respect to dealings

with canvassers which was supposed to be more consistent with the testimony of the defendants, as to the contract, than with that of the plaintiff.

Appeal from a judgment, entered in favor of the plaintiff, upon the report of a referee.