Douglass v. Mussman

DeCourcy, J. By the terms of the written agreement signed by the defendant, he was to receive a reference book containing ratings of business men, and reports concerning the mercantile standing and credit of merchants, manufacturers, etc. within a certain territory, on request. The contract was signed May 14, and dated July 1, 1919; and the defendant agreed thereby to pay in advance $100 for the year beginning July 1. This action was brought on September 21, 1920, to recover such payment. Under the exception of the plaintiffs the trial judge allowed the defendant to testify that on the day after the contract was signed, one Wills, an employee of the plaintiffs, said to him over the telephone: "Mr. Mussman I believe that I won’t be able to deliver you the book in time July first, so you wouldn’t have to pay in advance for that book; you have got time to pay from July [470] up to January.” We find it unnecessary to consider the extent, of Wills’s authority to bind his employers. Even assuming that the above telephone' conversation was binding on the plaintiffs, (see McNicholas v. Prudential Ins. Co. of America, 196 Mass. 565, 570, 571), its effect at most was to extend the time for payment of the $100 from July 1, 1919, to January 1, 1920. As we construe the contract and conversation the money was then payable in advance, and delivery of the book was not required until such payment. Moreover on the uncontradicted evidence the plaintiffs had then complied with all the requirements of the contract. They had sent the reference book in July, 1919, to 786 Washington Street, the address appearing under the defendant’s signature on the contract. This action was not begun until the following September. The motion that a verdict be directed for the plaintiffs should have been granted: and in accordance with G. L. c. 231, § 123, judgment is to be entered in their favor in the sum of $100 with, interest from the date of the writ. So ordered.