Evidence, Extrinsic affecting writings, To show fraud, Presumptions and burden of proof. Contract, In writing, Performance and breach. Fraud. Practice, Civil, Ordering verdict. Damages, In contract.
Where one signs an unequivocal agreement in the form of a letter to pay for a stated number of volumes of an existing publication to be shipped by the person to whom the letter is addressed, and the letter contains the words, "This agreement is unconditional, except as noted hereon," and no conditions are noted thereon, the signer of the letter cannot show, at the trial of an action upon the agreement brought after he had received the books therein described and had returned them because he did "not feel as if" he could "afford the expense," that he was induced to sign the agreement by a representation of an agent of the vendor that, if he would sign, the books would be shipped to him with the privilege of examination and that he would be allowed to return them after examination if they were not satisfactory, such evidence tending to vary the terms of an unequivocal agreement in writing and not being sufficient to sustain a defense that the agreement was procured by fraud.
At the trial of an action upon an agreement in writing, dated on a May 12, whereby the defendant had agreed to receive and pay for certain volumes of a published work and the plaintiff had agreed to send him the volumes, it appeared that the following was printed on the face of the contract after the signatures, "1 year's subscription Scientific American Free," that the volumes were sent to the defendant about May 25 and that he returned them at once with a letter stating that he could not afford the expense of purchasing them. The only evidence with regard to the "Scientific American" was testimony of the defendant, "that he received some copies of the Scientific American, — how many he could not say, — that he received copies until he wrote to the Scientific American Company" the letter of May 25. There was no evidence describing the "Scientific American." A verdict was ordered for the plaintiff. Held, that a verdict should not have been ordered for the plaintiff, it being incumbent upon the plaintiff to prove that he had complied with all the terms of his contract and there being evidence from which the jury might have found that the "Scientific American" was not sent to the defendant after May 25.
Where, at the trial of an action upon a written agreement by the defendant to receive and pay for certain volumes, a year's subscription to the "Scientific American" to be given to the defendant free, there is evidence from which the jury may find that, although the volumes were sent to the defendant, the "Scientific American" was sent to him only for two weeks, and that, upon his returning the volumes, the vendor kept them for nearly three months without notifying the defendant that acceptance of them was refused and that they were held subject to his order, and that the full contract price was not claimed from the defendant for eleven months after the volumes were delivered to him, a verdict should not be ordered for the plaintiff for the full contract price.
DeCOURCY, J.
The conversation between the book agent and the defendant, before the signing of the order, was rightly excluded. It was an attempt to vary the effect of a written contract which contained an express stipulation that it was unconditional; Faucett v. Currier, 109 Mass. 79; Mears v. Smith, 199 Mass. 319; and the excluded evidence was insufficient to sustain the defense of fraud. Knowlton v. Keenan, 146 Mass. 86. American Soda Fountain Co. v. Spring Water Carbonating Co. 207 Mass. 488.
But we are of opinion that the court should have submitted the case to the jury, instead of directing a verdict for the plaintiff for the full amount due under the contract at the date of the writ. On the issue of liability it was incumbent upon the plaintiff to prove that his assignor had complied with all the terms of its contract, which included an agreement to send to the defendant a copy of the Scientific American for one year. There was evidence from which the jury could find that the vendor did not send the paper after May 25, 1909, and that it thereby failed to perform the contract on its part.
The issue of damages also should have been submitted to the jury. The vendor's failure to forward the paper after the defendant had returned the books tended to support the defendant's claim that the return of the books had been accepted, and that the vendor thereby lost its right to recover the entire contract price. So far as the record shows it retained the books from May 25, 1909, to August 5, 1909, without notifying the defendant that the acceptance of the books was refused, or that they were held subject to his order. And the jury might have deemed it significant on this question that the letter of April 25, 1910, was the first to claim, in terms at least, the full contract price. Barrie v. Quinby, 206 Mass. 259. Without further considering the evidence it is apparent that the ruling was erroneous.
Under the agreement of counsel the entry must be
Judgment for the defendant.