Massachusetts Biographical Society v. Russell , 229 Mass. 524 ( 1918 )

De Courcy, J.

The agreement on which this action is based is as follows:

“Biographical History of Massachusetts.

Massachusetts Edition United States Biographical Series

I hereby authorize you to execute for me a full-page Photo-Steel Engraved Plate and to insert prints therefrom in the Biographical and Historical work ‘Biographical History of Massachusetts,’ the plate reverting to me as my property.

The work is to be hand-bound in elegant crushed morocco, artistically decorated, gold top and special design.

The text of ‘Biographical History of Massachusetts’ is to be printed on specially high-grade paper.

The work is to be illustrated throughout with artistic full-page portraits.

The total expense for the making of the plate and insertion of the portrait, including one dozen artist’s proofs with enlarged margin, is to be $250.00, for which I hand you my check, payable to H. M. Plimpton & Co., Depositories.

“Signed Mrs. H. S. Russell Countersigned: Address Milton

-- Date April 6th 1910”

On the testimony of Thomas N. James (the plaintiff’s assignor) the judge of the Municipal Court was warranted in finding that Mrs. Russell (the defendants’ testatrix) signed this paper, and that she did so “with intent to have it operate as a signature on the so called contract.” This disposes of the defendants’ fifth request; and the finding for the plaintiff renders the fourth inapplicable, — even assuming that it correctly stated an abstract proposition of law. Aradalou v. New York, New Haven, & Hartford Railroad, 225 Mass. 235, 240.

In refusing the defendants’ eleventh request, and giving the twentieth, the judge must have found upon the evidence that James bound himself to do the things named in the printed agreement, in other words, that the contract was a bilateral one. We cannot say that conclusion was not warranted. Presumably he found that James made an offer which Mrs. Russell accepted. Elastic Tip Co. v. Graham, 174 Mass. 507. Burroughs Adding Machine Co. v. Mount Auburn Cemetery, 217 Mass. 378. The obligation of Mrs. Russell to pay $250 was not dependent on the performance of the obligation assumed by the plaintiff’s assignor, which was to be carried out later. International Textbook Co. v. Martin, 221 Mass. 1. Loveland v. Epstein Drug Co. 227 Mass. 311. It is unnecessary to consider what construction was placed by the judge on the seventh request; as the defendants asked for it, they cannot complain because it was given.

The defence raised by the pleadings was that Mrs. Russell did not enter into a contract, not that she was induced to enter into a contract by fraudulent misrepresentations. And it is now recognized by the defendants that the alleged fraudulent misrepresentations of fact contained in the letter to Mrs. Russell and the alleged misleading designation of the proposed work do not constitute a defence in this action.

The foregoing disposes of all the requests argued by the defendants except those relating to damages. As already said, the judge was warranted in finding that Mrs. Russell promised to pay the $250 forthwith, and that the payment was not dependent upon the previous performance by James' of his agreement to publish the sketch and portrait of her husband. International Textbook Co. v. Martin, supra. No error appearing on the record, the order of the Appellate Division dismissing the report must be affirmed; and it is

So ordered.