Barrie v. Earle , 143 Mass. 1 ( 1886 )

Field, J.

The first exception is to the exclusion of evidence that the defendant’s signature to the contract was obtained by false and fraudulent representations. This evidence was excluded upon the ground that the contract was entire, and that the defendant' could not avoid it except by returning the two portfolios which he had received and paid for. The same question of law is involved in the last exception. A majority of the court are of opinion that this is such a contract as is described in Badger v. Titcomb, 15 Pick. 409, 413, where, “ although the agreement is entire, the performance is several; ” or, as is said in Denny v. Williams, 5 Allen, 1, 4, a contract “one and entire in its origin, and yet, looking to the performance of different things at different times, it may be divisible in its operation; ” that, although an action under it could be maintained for the price of each portfolio when it was delivered, yet that the contract is one entire agreement to take one copy of a publication, made up of ten parts or portfolios, all constituting the Art Treasures of America; and that it is not a contract containing ten distinct and independent agreements to take ten different portfolios, one under each agreement. See Vinton v. King, 4 Allen, 562. The defendant’s 'evidence went to the whole contract, and was offered for the- purpose of avoiding the whole contract, and he could only avoid the contract for fraud in its inception by rescinding it in toto, and by restoring to the plaintiff the portfolios which he had already received. If the defendant had a right to avoid the contract, and exercised that right, he had a defence to this action, and could recover, in an action brought by him, the thirty dollars he had paid, and the portfolios would all belong to the present plaintiff; but the defendant could not retain part of the portfolios under the contract, and avoid the contract as to the rest. Clark v. Baker, 5 Met. 452. Morse v. Brackett, 98 Mass. 205. Mansfield v. Trigg, 113 Mass. 350. Young & Conant Manuf. Co. v. Wakefield, 121 Mass. 91. It does not follow from this, that the defendant was required to receive any portfolios that were not such as the contract called for, or that, if the plaintiff did not from time to time offer to the defendant ten portfolios, each of which satisfied the description contained in the contract, the defendant might not recover damages for a breach of the contract by the plaintiff.

We are not certain that we understand the remaining exceptions. The defendant also offered evidence, which was excluded, of certain statements made by the plaintiff’s .agent as to the place where the defendant’s name and address would appear upon said portfolios, and the way and manner in which said name and address would be printed and would appear, as provided in the fifth clause of said contract. It does not appear that the defendant offered evidence that the portfolios, in respect to the special title and the printing therein of the defendant’s name and address, were not in conformity with the statements of the agent. The fifth clause of the contract was, “ Each copy of the work to contain a special title bearing name and address of its subscriber; and the publisher guarantees to furnish impressions and paper equal in all respects to tlie specimens shown.” The evidence offered was, not that the portfolios did not contain a special title bearing the name and address of the subscriber, or were not “ equal in all respects to the specimens shown ” at the time the contract was made; and it does not appear that the specimens shown did not contain an impression of a special title, complete in all respects except the name and address of the subscriber. The contract itself provided that “ No terms, conditions, or representations other, than here printed will be binding on subscriber or publisher.” It does not appear that the defendant ever complained of the manner in which his name and address were printed in the special title, or that this was one ground of his refusing to receive the portfolios.

Under these circumstances, we are not called upon to determine the extent and the application of the principle declared in Stoops v. Smith, 100 Mass. 63, to the various conceivable facts of this case. • The defendant clearly has not shown that the evidence was admissible.

It appears that the third portfolio was sent to the defendant’s house, and the defendant “refused to take” it, and afterwards refused to accept the remaining portfolios. It also appears that, after a package containing portfolios for the defendant and for Prentice, who occupied a tenement in the same house with the defendant, had been received at the defendant’s house, the copy or copies with Prentice’s name on them, by the mistake of somebody, were delivered to the defendant, and the defendant’s copy or copies were delivered to Prentice. The portfolios were in all other respects alike. These were probably the first and second portfolios. This mistake was unknown to the plaintiff until after the suit was brought, and was known to both the defendant and Prentice, and it does not appear that the defendant could not have taken possession of his copy or copies whenever he wished, or had not in fact taken possession of them. As the defendant absolutely refused to receive the remaining portfolios, and notified the plaintiff of his refusal, and gave no notice of- this mistake, and did not indicate in any manner that he relied upon it, he must be held to have waived it.

Exceptions overruled.