Bell v. Smith

99 Mass. 617

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1868
• Status: Published

Opinion

Chapman, C. J.

The plaintiff having admitted at the trial that he was not authorized to trust out goods at the risk of the defendants under his original contract with them, and that he relied wholly upon a special authority given to him at a subsequent time, the usage of the defendants respecting their contracts for hiring peddlers was immaterial. No proof of usage in making contracts with others could strengthen the admitted fact, that in their original contract with the plaintiff they withheld the authority from him. .And the usage did not apply to the special contract which he attempted to prove was made afterwards.

If the plaintiff wrongfully refused to perform his written contract to peddle for the defendants for a stipulated time, he thereby gave to the defendants the right to terminate the contract. It appears that they did this on the 2d of May 1867, and on the same day credited the plaintiff on their ledger with his labor up to that time. Giving this credit was an act of the defendants tending to show that they waived any claim they might have to a forfeiture of his wages for past services. It was not a mere mental act, but an entry that changed the actual state of their account with him. Though they did not make the act known to him at the time, yet they did so afterwards, when they brought the book into court and used it at the trial. The court ruled correctly, that it was competent evidence to prove a waiver of the forfeiture on their part. Exceptions overruled.