Contract, Modification, Performance and breach.
A merchant made a contract in writing with the publisher of a mercantile reference book and reports which "requested" the publisher to place the reference book in the merchant's keeping and required the merchant to "pay in advance $100 for one year's services of" the publisher "together with the use of the said Reference Book." The contract stated that it was signed on a May 14 and was dated July 1, 1919. No payment or offer of payment ever was made by the defendant. In an action by the publisher against the merchant begun in September, 1920, for the $100 payment, the defendant testified, subject to an exception by the plaintiff, that on the day after the contract was signed an agent of the plaintiff had stated to the defendant that the reference book could not be delivered on July 1, "so you wouldn't have to pay in advance for that book; you have got time to pay from July up to January." A motion by the plaintiff that a verdict be ordered in his favor was denied and the jury found for the defendant. Held, that
(1) Assuming, without deciding, that the modification of the contract delaying the payment by the defendant to January, 1920, was authorized by the plaintiff, the defendant still was required to make the payment before performance could be required of the plaintiff;
(2) A verdict should have been ordered for the plaintiff.
At the trial of the action above described, there was uncontradicted evidence tending to show that the plaintiff had attempted to deliver the reference book to the defendant at an address placed under his signature on the contract, and it was stated that such a delivery by the plaintiff was performance by him of the provisions of the contract as to delivery of the book, and, in the circumstances, judgment for the plaintiff in the sum of $100 and interest was ordered by this court under G.L.c. 231, § 123.
De COURCY, J.
By the terms of the written agreement signed by the defendant, he was to receive a reference book containing ratings of business men, and reports concerning the mercantile standing and credit of merchants, manufacturers, etc. within a certain territory, on request. The contract was signed May 14, and dated July 1, 1919; and the defendant agreed thereby to pay in advance $100 for the year beginning July 1. This action was brought on September 21, 1920, to recover such payment.
Under the exception of the plaintiffs the trial judge allowed the defendant to testify that on the day after the contract was signed, one Wills, an employee of the plaintiffs, said to him over the telephone: "Mr. Mussman I believe that I won't be able to deliver you the book in time July first, so you wouldn't have to pay in advance for that book; you have got time to pay from July up to January." We find it unnecessary to consider the extent of Wills's authority to bind his employers. Even assuming that the above telephone conversation was binding on the plaintiffs (see McNicholas v. Prudential Ins. Co. of America, 196 Mass. 565, 570, 571), its effect at most was to extend the time for payment of the $100 from July 1, 1919, to January 1, 1920. As we construe the contract and conversation the money was then payable in advance, and delivery of the book was not required until such payment.
Moreover on the uncontradicted evidence the plaintiffs had then complied with all the requirements of the contract. They had sent the reference book in July, 1919, to 786 Washington. Street, the address appearing under the defendant's signature on the contract. This action was not begun until the following September.
The motion that a verdict be directed for the plaintiffs should have been granted: and in accordance with G.L.c. 231, § 123, judgment is to be entered in their favor in the sum of $100 with interest from the date of the writ.
So ordered.