Baltimore Base Ball Club & Exhibition Co. v. Pickett

22 L.R.A. 690, 28 A. 279, 78 Md. 375, 1894 Md. LEXIS 4

Opinion

Briscoe, J.,

delivered the opinion of the Court.

This suit was brought for the alleged breach of a special contract of hiring. The contract was made and entered into by and between the Baltimore Base Ball Club of the City of Baltimore, party of the first part, and John T. Pickett, of the City of Chicago, party of the second part, and is in these words: “The said party of the second part agrees to play ball for the party of the first part for the season of 1892, for the sum of three thousand ($3,000) dollars, with five hundred dollars advanced on contract; said sum of five hundred ($500) dollars, to be considered part of the said three thousand ($3,000) dollars above stated. Salary payable first and fifteenth of each month; sei-vices to commence on the 26th of March, 1892, and end on October 31st, 1892.”

The appellee, the plaintiff below, entered upon the services and performed them until the first day of June, 1892, when he was discharged or released. He was paid the five hundred ($500) dollars advanced money, and also four payments on account of his salary. The grounds set up for his discharge were want of skill and ability. The judgment was for the plaintiff and the defendant has appealed.

At the trial there were ten exceptions reserved to the rejection by the Court of evidence offered by the defendant, the third, ninth and tenth of which, were abandoned at the hearing. There were also exceptions to the granting of the first, fourth and fifth prayers of the plaintiff, and to the rejection of the first, third, sixth and eighth prayers of the defendant, and to the instruction on the part of the Court. These exceptions form the basis of this appeal, and we will pass upon them in their regular order. There were two defences relied upon by the appellant.

First, that the plaintiff did not exercise that degree of skill and efficiency required of professional base ball players, playing in the league or association to which the defendant belonged, and was discharged for inefficiency.

Secondly, that there was a universal and well known custom observed by all professional base ball clubs, that tbe club shall have the right on ten days’ notice, to release any player who does not come up to the requirements of his position, and play satisfactorily; that the ■defendant received the ten days’ notice and was discharged.

It will be observed that the contract in this case was a special one, for a precise period, definite in its terms, and is simply an ordinary hiring under a special contract. It is entirely silent as to the degree of skill the plaintiff should possess in the business for which he was •employed. In the words of the contract “he was to play ball for the Baltimore Base Ball Club, the party of the first part, for the season of 1892.” Now, it is a well settled rule that the standard of comparison or test of ■efficiency is that degree of skill, efficiency and knowledge which is possessed by those of ordinary skill, competency and standing in the particular trade or business for which they are employed. And as the contract provided for no higher degree of skill than this, none other ■could be required. The Supreme Court’ of Pennsylvania lays down the doctrine to be: “Where skill as well as ■care is required in performing the undertaking, if the party purport to have skill in the business, and he undertakes for hire, he is bound to the exercise of due and ordinary skill in the employment of his art or business about it, or, in other words, to perform in a workmanlike manner. In cases of this sort he must be understood to have engaged to use a degree of diligence and attention and skill adequate to the performance of his undertaking. Ordinary skill means that degree which men engaged in that particular art usually employ, not that which belongs to a few men only of extraordinary endowments and capacities.” Waugh vs. Shunk, 20 Pa. St., 133; also Harmer vs. Cornelius, 5 C. B. Reports, N. S., 236; Parker vs. Platt, 74 Ill., 432.

This doctrine was fairly submitted to the jury by the first prayer of the plaintiff and the fourth prayer of the defendant, by which they were in substance, told that-if they found that the plaintiff did not possess and exercise the skill, knowledge and efficiency possessed and exercised by other professional base ball players of ordinary skill, knowledge and efficiency, and that he was discharged for such reasons, then their verdict must be for the defendant. A large number of witnesses, who-had been professional base ball players for six or ten years, and who had played with the plaintiff, testified that they considered him a good player, and that he played an average good game of hall.

We pass now to the second question in the case. The contention on the part of the appellant is that the contract was made subject to a usage or custom that the club had a right to cancel the contract and discharge the player on giving ten days’ notice when the player is deficient in his playing. The contract is entirely silent upon this subject, and it is not admittéd that the-player had the reciprocal right to abandon the club, or to cancel the contract when he deemed it proper or right, to do so. We have carefully examined the testimony, and find a failure of proof to establish an}^ usage. The evidence was manifestly t.oo vague and unmeaning to-warrant, upon any principles, the submission of any proposition based upon it. The plaintiff testified “that-he had been playing professional base ball for the past nine years, is familiar with the rules of the game, and had signed contracts for professional clubs; that he had never signed a contract with the ten days’ clause; that, he never even saw one, and knew of no custom by which a player could be discharged that way. That nothing was said about it when he signed.” The authorities all hold that a usage to be admissible must be proved to be known to the'parties or be so general and well estab lished that knowledge and adoption of it may be presumed, and it must be certain and uniform. Foley & Woodside vs. Mason & Son, 6 Md., 51; Second National Bank of Balto. vs. Western National Bank of Balto., 51 Md., 128; The Citizens’ Bank of Baltimore vs. Grafflin, 31 Md., 520; Patterson vs. Crowther & Boone, 70 Md., 125. But conceding that there was sufficient evidence of the custom and usage contended for by the appellant, we are clearly of the opinion that it was not admissible to vary the terms of this special contract. The contract. as we have said, is one for a definite term of service and binding on both parties. To admit the usage ■would not only destroy its mutuality but vary its terms. The Supreme Court of Rhode Island in a similar case to the one now under consideration held, that “a local usage cannot be considered a part of a contract, when it contradicts that contract.” Justices Dureee and Haile, in delivering the opinion of the Court, say, the contract and usage cannot stand together. Either the contract must prevail and make void the usage, or the usage must prevail and make void the contract. The contract described in this declaration is not a contract made with reference to the usage, but against it. The contract described, is to labor for a year, but the usage terminates it at will. The contract is by the very fact of its existence, a protest against the usage, for it ceases to be a special contract the moment that the usage is made part of it. A usage which annuls such a contract cannot be given in evidence, without subverting the well settled rule, that usages inconsistent with a contract cannot be given in evidence to affect it. Sweet vs. Jenkins and Man, 1 Rhode Island, 147. And to the same effect, is the case of Peters vs. Staveley, Court of Queen’s Bench, where Chief Justice Cockburn holds that, the contract being for one week certain, the custom even if proved, could not control it. 15 Law Times Beports, 275; also, Smith vs. Sheridan, 32 N. Y. State Reporter, 23. The same rule has been established by this Court in a number of cases. Foley & Woodside vs. Mason & Son, supra; The Citizens’ Bank of Baltimore vs. Grafflin, supra; Susquehanna Fertilizer Co. vs. White & Co., 66 Md., 452; Patterson vs. Crowther & Boone, 10 Md., 125; First Nat. Bank of Baltimore vs. Taliaferro, 12 Md., 165.

It follows then from this view of the case, that there was no error by the Court in granting the plaintiff’s fourth, and fifth prayers which were to the effect that there was no evidence of any usage by which the plaintiff could be discharged before the end of the contract period without sufficient cause, and the exclusion from the jury of all evidence offered to show the existence of such a usage. The first prayer of the defendant relative to the existence of the usage was properly rejected. The third, sixth and eighth prayers of the defendant were properly rejected for the reasons we have heretofore given. The first prayer granted on the part of the plaintiff was correct, and contained the law upon that branch of the case. We have examined all the exceptions and .discover no error of which the appellant has a right to complain.

The first, second, fifth, sixth and seventh exceptions to the admission of evidence, are substantially the same, and present the question as to the degree of skill required of the plaintiff in the performance of his duty. The evidence was properly rejected because it tended to exact or to establish a higher degree of skill than that contemplated by the contract. The appellant was not a member of the National League at the time the contract was entered into, on November 14, 1891; it did not become such until January, 1892. This testimony was therefore immaterial and irrelevant. The fourth exception was to the refusal of the Court to allow the following question to be answered: “Can you tell whether or not there was any public complaint by the patrons of the manner in which Mr. Pickett filled, his position ?” It is unnecessary to pass upon the exception as the witness afterwards substantially answered tho question proposed, and defendant had the benefit'of his answer. The remaining exception was to the instruction of the Court as to the measure of damages. This prayer instructed the jury that if they found for the plaintiff, he was entitled to recover the contract price, less such sums as may have been paid to him, and also less such sums as he earned, or by the exercise of due diligence might have earned, in the line of his business, during the remainder of the period covered by the contract. We think this was unexceptionable, and is the law laid down by this Court in Cum. & Pa. R. R. Co. vs. Slack, 45 Md., 161.

(Decided 12th January, 1894.)

Finding no error, and the whole case having been fairly submitted to the jury, the judgment will be affirmed.

Judgment affirmed.