Contract, In writing, Performance and breach. Evidence, Extrinsic affecting writings, Relevancy.
A woman signed an order in writing for the making of a steel plate portrait of her father to be inserted in a "Memorial Encyclopedia of the State of Massachusetts" for which she agreed to pay $300 "upon submission of Artist's proof," and the agreement provided, "It is further understood by me that no agreement will be recognized by the company unless embodied in this contract, and that this contract is not subject to countermand." The same woman also signed another order subscribing for a copy of the volume named above, for which she agreed to pay $38 on its delivery at her residence, which order provided, "The work is to be issued in special De Luxe binding lettered in gold. No representations or guaranties have been made which are not herein expressed. I base this order on what is promised in this contract, and it is also understood by me that this contract is not subject to countermand. I also agree to correct the personal sketch when presented to me for that purpose." In an action of contract on the contracts made by these two orders, the trial judge, on evidence warranting such findings, found that the binding of the volume delivered to the defendant was of the quality understood by the parties, and that the work was an encyclopedia in such sense as the subscriber well understood and knew, that the article on the defendant's father was sent to the defendant with a full opportunity to read and correct it, and that the defendant "signed her approval of it without reading" the article, "that the plates were executed, proof submitted and approved by the [subscriber], inserted in the book and the plates and prints delivered to" her, and that throughout all the transactions no fraudulent misrepresentations were made by the plaintiff. The judge found for the plaintiff. Held, that the finding of the judge was warranted; that, the defendant having agreed in writing in unambiguous terms to pay for the plates for her father's portrait and to take the book, the contracts could not be enlarged by extrinsic evidence, and that by the express warranty contained in the contract any implied warranty inconsistent with it necessarily was excluded.
In the case above described it also was held, that evidence offered by the defendant of a genealogy of the family of the defendant's father prepared for the use of another publisher, which differed from the sketch contained in the book in question, properly was excluded by the trial judge as wholly irrelevant.
BRALEY, J.
The plaintiff, to which reference will be made as the society, sues in the first action for the price of a book entitled "Memorial Encyclopedia of the State of Massachusetts," while the plaintiff in the second action, hereafter called the subscriber, seeks to recover back the amount paid to the society for the insertion in the book in connection with his biography, of a portrait and coat of arms of her father. The subscriber rests her right to reclamation, as well as her denial of liability, on the common ground shown by her requests for rulings and findings, which comprise all the material averments of the answer and allegations of the declaration.
The trial judge was requested to rule and find, that the book delivered, but which she declined to accept, was not in conformity with the contract because it was not in de luxe binding, or reasonably fit for the purpose for which it was intended, or an encyclopedia, or edited by Cutter, and that the contract for the book was obtained by fraudulent misrepresentations of its character, of the editorial supervision, and of the society in relation to the Massachusetts Historical Society. The contract expressly provides, that "No representations or guaranties have been made which are not herein expressed. I base this order on what is promised in this contract, and it is also understood by me that this contract is not subject to countermand. I also agree to correct the personal sketch when presented to me for that purpose." The trial judge, having found, on evidence warranting the findings, that the binding was of the quality understood by the parties and that the work was an encyclopedia in such sense as the subscriber well understood and knew, "that it was to contain only relatively few of the lives of those whom the publishers deemed to be representative men and accepted their standards without inquiries or objection," and that, after the "article as to her father was read to her" and a full opportunity given to read it over and correct it, she "signed her approval of it without reading," and that "the plates were executed, proof submitted and approved by the [subscriber], inserted in the book and the plates and prints delivered to" her for which she gave her check and that throughout all the transactions no fraudulent misrepresentations were made by the society, the subscriber's second, third and fourth requests, and subsections "a" and "b" of the first request were denied rightly.
It is argued in support of subsections "b" and "d" that the work contained biographical sketches of persons who, although they may have been men of integrity, of good character, of average mental ability and successful in their various callings, which were reputable, yet they were not sufficiently illustrious either in birth or in academic or political honors to merit their inclusion by the society. But, whatever the standard which in the opinion of the subscriber should have been adopted in the selection and classification of those deemed worthy of remembrance by their fellow men, the contract under which the rights of the parties are to be determined not having contained any limitations or provisions of this character, or that Cutter personally should oversee its composition and preparation, no implied warranty of fitness of the book either in the choice of persons to be commemorated, or of editorial supervision, or of typographical perfection, or of literary finish and excellence is to be read in by implication. A buyer can contract for books with the understanding that in many particulars they may prove to be imperfect, just as the parties may contract for the sale of unmerchantable goods. Whitney v. Boardman, 118 Mass. 242. Morley v. Consolidated Manuf. Co. 196 Mass. 257. It all depends upon the terms of the agreement. Inter-State Grocer Co. v. George William Bentley Co. 214 Mass. 227, 231. The subscriber engaged to take the book and rested her order on the terms of an unambiguous contract which cannot be enlarged by parol evidence. And the only material representation or affirmation is that the work is to be entitled "Memorial Encyclopedia of the State of Massachusetts," which is "to be issued in special De Luxe binding lettered in gold." The contract accordingly is to be construed as meaning that, if the book corresponded with the conditions therein named, the subscriber upon delivery must pay the price. Curwen v. Quill, 165 Mass. 373.
More briefly stated the present case comes within the general rule, that where there is an express warranty in a written contract of sale, an implied warranty inconsistent with it is necessarily excluded. Whitney v. Boardman, 118 Mass. 242. Peoria Grape Sugar Co. v. Turney, 175 Ill. 631. Detroit Trust Co. v. Engel, 192 Mich. 62. York v. Steward, 21 Mont. 515, 518. Carleton v. Lombard, Ayres Co. 149 N.Y. 601. Milwaukee Boiler Co. v. Duncan, 87 Wis. 120, 125. J. I. Case Plow Works v. Niles Scott Co. 90 Wis. 590. De Witt v. Berry, 134 U.S. 306.
The judge also properly excluded evidence of the Storer genealogy which had been prepared by Cutter for use by another company and contained statements that differed from the sketch appearing in the book in question. It was wholly irrelevant to any undertaking of the society.
The society being entitled to recover, the subscriber cannot prevail, and, perceiving no error of law in any of the rulings, her exceptions in each case should be overruled.
So ordered.