Massachusetts Biographical Society v. Howard

Pierce, J. It appears in evidence that the defendant on September 17, 1914, signed and delivered to a solicitor of the plaintiff, authorized to make contracts, an instrument which reads 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, for which I hand you my check, payable to the Massachusetts Biographical Society.” At the trial the defendant admitted that the signed instrument was unaltered except as such a result, if any, followed from the indorsement by the solicitor on an unsigned copy of the instrument given the defendant of these words: “On September 23rd, 1914, Mayor Howard is to have option of time for payment of the contract.” The presiding judge, speaking of the terms of the alleged contract and of the performance of the provisions therein by the plaintiff, said: “The defendant is not raising any question but that was the agreement and it is not on that ground that he is raising any defence; he is raising a defence solely on the question that this contract, which on its face is plain, simple and obligatory, was accompanied by this [an] agreement that it should be for the present no contract, but should only become a contract when the defendant notified the authorities that he was willing to allow it to become a contract. If you find that that was the contract, that • was the agreement, you find that that agreement was made, of . course your verdict should be for the defendant. If you find that it was not made, then this contract stands and the plaintiff is [487] entitled to recover $250, . . .” Under this charge the case went to the jury with the liability of the defendant admitted, unless the defendant should prove that the delivery of the instrument as an operative obligation was conditional upon the exercise by the defendant of an option granted bim by the plaintiff to “take the book” on September 23, 1914. Upon the direct testimony of the defendant the jury was fully warranted in finding, as it did, that the instrument signed by the defendant and delivered to the plaintiff was not to have effect as a binding obligation unless and until the defendant should “notify us whether or no you want it,” by sending to Mr. Eliot, Editor-in-Chief of the Massachusetts Biographical Society, on September 23, 1914, a notification whether the defendant would take the book; and it is plain that it could make such finding consistently, notwithstanding the testimony of the defendant on cross-examination, that when he signed the instrument he supposed the plaintiff’s solicitor would turn in to the plaintiff the signed contract not containing the indorsement; that at the time he signed the contract he considered himself bound by the contract with the indorsement on the copy he retained; and that at the time of the trial he still considered himself bound. It is well settled that the rule against the admission of oral testimony to vary the terms of a written instrument is not applicable when that testimony is offered to prove, as here, that the signed and delivered instrument never became operative as an obligation of the parties thereto. Zielmann v. Copelof, 232 Mass. 393, 396. Watkins v. Bowers, 119 Mass. 383. Hill v. Hall, 191 Mass. 253. The direction of the duly authorized solicitor to “notify us” by notifying Mr. Eliot, the Editor-in-Chief of the Massachusetts Biographical Society, authorized the sending of a letter on the. day named to Mr. Eliot, Editor-in-Chief of the Massachusetts Biographical Society, Boston. Had the letter sent been addressed, without the name Mr. Eliot, to the Massachusetts Biographical Society, Boston, and mailed, a presumption of fact of delivery would arise that such letter was duly delivered and received at No. 294 Washington Street, Boston, — the “Boston office” of the plaintiff indicated as its place of business upon its letter headings in evidence and a part of the plaintiff’s bill of exceptions. Tobin v. Taintor, 229 Mass. 174. It would seem plain that the letter [488] could be found to have been delivered at the plaintiff’s office and, considering its contents, reasonably probable that it was turned over by Mr. Eliot to the proper person to receive it. But whether the plaintiff received it or not is quite immaterial, if the jury should find that the defendant sent it as a notification of his purpose to the person to whom the plaintiff had chosen to have it sent; and it is equally immaterial that that person was not authorized to receive it or act upon it. Leavitt v. Maynes, 228 Mass. 350. Assuming the jury to find the testimony supported the contention of the defendant independently of the contents of the letter, the letter was admissible as evidence to prove the defendant notified the plaintiff in the manner provided by their agreement of his election not to be bound by the instrument which he had signed. The exception to the admission of this evidence was a general one; the letter was admissible for a limited purpose, and the exceptions must be overruled. So ordered.