Greenleaf v. Gerald

• Decision Date: 16 April 1900
• Citation: 46 A. 799,94 Me. 91
• Parties: GREENLEAF v. GERALD.
• Court: Maine Supreme Court

46 A. 799

94 Me. 91

GREENLEAF

v. GERALD.

Supreme Judicial Court of Maine.

April 16, 1900.

Exceptions from superior court, Cumberland county.

Action by Levi Greenleaf against Amos F. Gerald. Verdict for plaintiff. Defendant excepts. Exceptions sustained.

This was an action of assumpsit, tried to a jury in the Cumberland superior court, against the defendant, to recover the sum of $35, for a certain book, entitled "Men of Progress of the State of Maine." The jury gave a verdict for the plaintiff. As evidence of that liability, the plaintiff offered in evidence a certain order signed by the defendant, and dated the 21st day of February, 1896, as follows:

"New England Magazine, Boston, Mass.: Please send me one copy of your complete work, entitled, 'Men of Progress,' to be issued in one large royal octavo volume, with portraits and biographical sketches of representative men of the state of Maine, for which I agree to pay you, or order, the sum of thirty-five dollars upon issue of the part containing my sketch and portrait, and delivery of the photo-engraved plate of tbe portrait of myself. My photograph and data for sketch I promise to furnish within thirty days, or pay the above-mentioned sum upon delivery of the work.

"Name: A. F. Gerald. Address: Fairfield, Maine."

The plaintiff sued as assignee of the proprietor of the New England Magazine, and offered evidence to show that sometime in 1807 the book was delivered to tbe defendant, or was left at his house, and that its presence there came to his knowledge, and that he declined to receive it, as stated in the letter of September 17, 1897, written by him to the agent of the publisher.

It appeared that the defendant did not comply with the latter part of the contract,—that is, he did not send his photograph or the sketch of his life; and the publisher was unable to publish a sketch of the defendant in the book, or to print a portrait of him in connection with that sketch, or to furnish a plate of the portrait, as provided in the order.

The defendant admitted that the publisher sent him, soon after the order was signed, a letter requesting the portrait and sketch, which he declined to furnish, and that he signed the order which constitutes the basis of the action.

He also admitted that the agent of the assignor of the plaintiff came to him and solicited this order, and that he signed it. He rested his defense upon the ground that he was induced to sign the order by certain representations which were made by the agent, which representations he claimed were false. He also claimed that these representations were of such a character that they were material to the quality of the book, and that he relied upou these representations, and attached his signature to the order in consequence of those representations.

Upon this branch of the case the presiding justice instructed the jury as follows:

"So there is a question of fact for you to determine. In the first place, did the agent make the representations which the defendant claims he made? If he did not, if no representations of that character were made, why, that practically ends the case. Under those circumstances, I do not understand that the defendant would claim that he had any defense to this action. After you have determined what the representations were, the next question is, were they material? Did they relate to the character and quality of the book to be published?

"If they were made, did they have any relation whatever to the character of the book? Because it is not every statement, every representation, that a man makes when he is about to make a trade, that is material to the issue. A man, in making a trade, may come to you and say to you that he came from Portland the day before, or that he was going along the street, and called in for the purpose of selling a horse or a carriage; and it turns out that he did not come along the street, and did not come from Portland. Now, those are matters not material to the issue. But if he should make any representations as to the character of the horse, that might be material, as you see. So that, if the representations were made, the next question is, were they material?

"Did they relate to the quality and character of the article to be sold? Or, in this case, did those representations relate to the character and quality of the book which was to be published by the plaintiff's assignor? If they did not, if they had no bearing upon tbe quality of the book, if they were not material, then the defendant was not injured by them, and they would not avail him in the defense of this action. But if they were material, if they did relate to the character and quality of the book to be published, the next question is, were those representations false or true? Because, if true, ...