YORSTON v. BROWN

In a suit to recover the contract price for a portrait engraving of the defendant made by the plaintiff, it appeared that the defendant signed the following order on a blank furnished by the plaintiff headed by a description of a proposed edition of Gould's History of Freemasonry: "Please to execute for me a steel plate engraving from photograph furnished of myself, for which I agree to pay to you or your order the sum of $300 upon the delivery to me of fifteen India-proof impressions from the plate; and I authorize you to copyright, print and insert the number of impressions required in the Portrait Gallery and Biographical Volume of the above named work." An advertisement of the plaintiff was put in evidence in which the defendant was named as one of "the brethren whose portraits have already been engraved or are being engraved to appear in Gould's History of Freemasonry." There was evidence that the plaintiff published a portrait engraving of the defendant in a book called "Portrait Gallery with Biographical Sketches of Prominent Freemasons throughout the United States" making no reference to Gould's History of Freemasonry. Held, that the heading of the blank on which the order was signed was part of the instrument and could be used to show that the defendant gave his order to the plaintiff as publisher of Gould's History of Freemasonry; that the contract being ambiguous the above named advertisement was admissible as an act of the plaintiff tending to show its meaning; that the plaintiff's agreement was to publish the defendant's portrait in Gould's History of Freemasonry; and that in order to recover the contract price the plaintiff must show that the defendant accepted the publication of his portrait in the book published by the plaintiff in place of a publication in Gould's History of Freemasonry.

LORING, J.

The order for the steel plate engraving, for which the defendant was to pay $300, was not given to an engraver but to a publisher; it was addressed to "J.C. Yorston Co. Publishers"; it is competent for the defendant to refer to the plaintiff's own printed heading on the blank furnished by him to the defendant for use in making out the order, to show that the order was given to him as publisher of Gould's History of Freemasonry.

This case is not like Schenck v. Saunders, 13 Gray, 37, which was followed by the Supreme Court of the United States in Sturm v. Boker, 150 U.S. 312, relied on by the plaintiff; in those cases one of the parties sought to add to the terms of a contract which was clearly set forth in writing, by a statement in his own bill head, under which he had made out an invoice of the goods covered by the contract; in this case the defendant seeks to take advantage of the heading on the plaintiff's printed blank order, to show that the order was given to the plaintiff as publisher of Gould's History of Freemasonry.

The advertisement of the plaintiff, in which the defendant is named as one of the "brethren whose portraits have already been engraved or are being engraved to appear in Gould's History of Freemasonry," was an act of the plaintiff which can be considered in construing this ambiguously written document. Menage v. Rosenthal, 175 Mass. 358.

Taking these matters into consideration, we are of opinion that by the true construction of the written order, the steel plate engraving, for which the defendant was to pay $300, was to be made for the publication of the likeness of the defendant in Gould's History of Freemasonry.

Were it not for the contention of the plaintiff to the contrary, it would be unnecessary to add that the plaintiff, on abandoning the publication of the defendant's likeness in Gould's History of Freemasonry, ended his right to recover the contract price. Cases like Couch v. Ingersoll, 2 Pick. 292, and the first rule in the notes to Pordage v. Cole, 1 Wms. Saund. 548, 550, have no application to a case where the plaintiff has abandoned all intention of performing his part of the contract.

The plaintiff is not entitled to have a verdict entered for him by reason of the affirmative answer given by the jury to the question put to them. It would have been competent for the plaintiff to prove that the defendant accepted a publication of his likeness in the book, published by the plaintiff, from which all reference to Gould's History of Freemasonry was eliminated, in place of a publication of it in that book. But if he wished to recover on that ground, he had to convince the jury that the defendant, knowing that under the contract he had a right to have his likeness published in Gould's History accepted in place of it, a publication in the Portrait Gallery, from which all reference to Gould's History was eliminated. No such question was left to the jury in this case; on the contrary, they were told that the plaintiff was entitled to recover the contract price on executing the steel engraving and delivering to the defendant fifteen India-proof impressions from it, without a publication or an intended publication of the defendant's likeness in Gould's History of Freemasonry. After giving them that instruction the presiding justice asked the jury to answer the following question: "Did the defendant, with knowledge of all the facts, and especially the fact that the biography had not been published in that particular book, promise to pay the bill of $300 or to send a check for it?" Though the jury under these instructions answered that question in the affirmative, they have not found that the defendant with knowledge of his rights under the written order accepted a publication in the Portrait Gallery in place of a publication in Gould's History of Freemasonry, and that answer gives the plaintiff no right to recover the contract price.

Exceptions sustained.