Coale v. Bennett ( 1900 )

Scotchman, J.

This action is brought to recover $200.85 against all of the defendants for alleged professional services rendered as stenographer, and for adjournments upon a reference. The only question in dispute is the alleged services for adjournments. The charge made for stenographer’s fees and transcribing minutes of the testimony has not been questioned. There was no agreement in writing or stipulation, it is admitted, as to the payment of fees for adjournments. The proofs at the trial show that one-half of the claim set up in the complaint was paid by other parties interested, and that only one-half, namely, $100.43, is claimed in this action against the present defendants. There being no agreement, the plaintiff sought to establish her ■claim as to adjournments by attempting to prove a custom; that it was her usual custom to charge for such adjournments at the rate of $5 each. All questions in relation to this custom were obected and the allowance thereof excepted to and repeated motions were made to strike out the answers given, and the denial thereof excepted to. To establish a custom, it must be shown that it is general, uniform and known. This, the evidence in this case fails to show. What the plaintiff charged for adjournments during thirteen years past is not competent to establish a custom. There being no evidence competent to establish a custom, the trial justice erred in submitting the case to the jury on the question of custom.

Judgment and order appealed from reversed and new trial ■ordered, with costs and disbursements to the appellants to abide the event.

Eitzsimons, Oh. J., concurs.

Judgment and order reversed and new trial ordered, with costs to appellants to abide event.