Contract, Construction. A publisher sued a subscriber for an unpaid balance alleged to be due under the following order addressed to the plaintiff and signed by the defendant: "Send to me, carriage paid, Volumes 11 to 31 inclusive, of the First Edition of the American and English Encyclopædia of Law, which you are to loan to me during the publication of the Second Edition, and for the use of which I hereby agree to pay you $21. I hereby subscribe for the Second Edition of the American and English Encyclopædia of Law, to be completed in not to exceed thirty-two (32) volumes, including indexes, and agree to pay you therefor $7.50 per volume upon delivery. Volumes loaned become subscribers as soon as 2nd Edition has been paid for." On the back of the contract there was indorsed in writing "$6 after delivery and $5 every following 30 days until all deliveries are paid." When the action was brought the last four volumes of the second edition had not been published and the five previous volumes although published had not been delivered to the defendant who had failed to pay for some of the volumes delivered to him. The balance sued for was due according to the terms of the memorandum in regard to payments indorsed on the back of the contract, but the defendant contended that the contract was an entire one and that nothing was due until all of the second edition had been delivered to him. Held, that the contract was not an entire one, and that by its true construction the defendant was bound to pay $21 for the use of volumes 11 to 31 inclusive of the first edition and $7.50 for each volume of the second edition delivered.
MORTON, J.
This case turns upon the construction of the contract between the plaintiff and the defendant. We are of opinion that the contract bound the defendant to pay $21 for the use of volumes 11 to 31 inclusive of the first edition and $7.50 per volume of the second edition and that the contract was not an entire contract. The balance sued for was due even if the memorandum on the back in regard to payments be considered as constituting a part of the contract. The rulings requested were rightly refused, and we discover no error in the manner in which the judge dealt with the case.
Exceptions overruled.