Barrie v. Jerome

Mr. Justice Baker

delivered the opinion of the court.

Appellee contends that the contractivas entire and that plaintiffs cannoVrecover on proof of part performance. The contract is one entire agreementToTake one copy of a certain edition of Balzac’s novels made up of fifty-one volumes, and not a contract containing fifty-one distinct agreements, each to take one volume of said edition. But a contract may be entire and the performance, several. “ Confusion is often caused by failure to observe the distinction between several contracts and a divisible, separable or appbrtionable contract. An apportion able contract enables a certain part of the payment or performance on one side to be recovered before the whole consideration has been given by the other side, but there is nevertheless but a single contract.” 1 Parsons’ Con., 9th Ed., 673 bottom paging.

Appellee agreed to pay for the books “ on delivery at the rate of $6.50 per volume.” In the “ conditions of subscription ” it was stated that the works would be issued “ at the rate of two volumes per month.” We have then the case where a set of books containing fifty-one volumes to be issued at the rate of two volumes per month, is subscribed for and the subscriber agrees “ to pay on delivery at the rate of $6.50 per volume.” In our opinion the provision that the books “ will be issued at the rate of two volumes per month ” means that they will be issued or delivered to subscribers at the rate of two volumes per month, and the promise on the part of appellee to pay for the “ books on delivery at the rate of $6.50 per volume ” is a promise to pay for the volumes as delivered, and not a promise to pay when the complete set is delivered, and therefore the action for the price of the volumes delivered can be maintained.

Appellee also insists, that the order in question was obtained by means of the false and fraudulent representations of the agent or solicitor of appellants. In support of this contention appellee testified that at the time she gave the order the solicitor of appellants told her that the works of Balzac were “ nice books, books that her children would love to read and that they would be nice to have in the library.” These statements were at most the expressions of the opinion of the solicitor as to the character of the writings of Balzac, upon which appellee had no right to rely, and if she did rely upon them it was her own indiscretion. There is not in the statements of the solicitor to appellee as testified to by the latter, a statement of a fact that could amount to a fraudulent representation.

As there was no evidence of fraud or deceit on the part of appellants in obtaining the order in question, it was error to submit to the jury the question whether such order was obtained by fraud and deceit.

The judgment will be reversed and the cause remanded.

Reversed and remanded.