
    George Barrie vs. Enoch Earle.
    Worcester.
    October 6.— 23, 1886.
    W. Allen, J., absent.
    A contract by vhich one subscribes for a copy of a book, to be published in parts, at a certain p. ice for each part, payment to be made for each part after delivery, is so far an entire contract, that the subscriber, after receiving one part and paying for it, cannot, without offering to return such part, set up, in defence to an action for damages for breach of the contract in refusing to take and pay for the other parts, that he was induced to enter into the contract by fraud.
    A. subscribed for a nook to be delivered in parts, at a certain price for each part. By the terms of che subscription paper, each copy of the book was to contain a special title bearing the name and address of its subscriber; and the publisher guaranteed to furnish impressions and paper equal in all respects to the specimen shown. The subscription paper also contained the clause, “No terms, conditions, or representations other than here printed will be binding on subscriber or publisher.” In an action by the publisher against A. for breach of the contract, A. offered evidence of certain statements made by the plaintiff’s agent to the defendant as to the place where the defendant’s name and address would appear. This evidence was excluded. Held, that the defendant had no ground of exception.
    A. and B., each of whom occupied a separate tenement in the same House, separately subscribed for a certain book, to be published in parts, each part to be delivered singly, and the subscriber’s name to be printed on the title page. Two copies of a part were sent to the house occupied by A. and B., in one package, were there separated, and, by mistake, that with A.’s name on the title page was delivered to B., and that with B.’s name on the title page was delivered to A., the parts being in all other respects alike. This mistake was known to both A. arid B., but was not known to the publisher of the hook, who, upon A.’s refusal to pay, brought an action against him for the price of the same. Held, that A., by not giving notice of the mistake in the delivery of the part, must be considered to have waived it.
    Contract for breach of an agreement in writing, the material parts of which were as follows:
    “ May 24, 1883.
    “ To George Barrie, Philadelphia.
    “ Sir: I hereby subscribe for one copy of the Art Treasures of America, in ten portfolios, at fifteen dollars each, as published, on the following terms of subscription, which terms of subscription cannot be altered or modified:
    “ 1st. The Art Treasures of America, to be completed in 10 portfolios at $15 each.
    “2d. Each portfolio to contain 16 impressions of photogravure plates, India • proofs, lettez’ed, and 50 pages of text or full-page wood ezigravings.
    “3d. The portfolios to be issued at intervals of about two months.
    “ 4th. This edition is limited to twelve hundred copies, but no more copies will be issued than are subscribed for; and the publisher reserves the right at any time to advance the price to new subscribers.
    “ 5th. Each copy of the work to contain a special title bearing name and address of its subscriber; and the publisher guarantees to furnish impressions and paper equal. in all respects to the specimens shown.
    “ 6th. Portfolios to be delivered, carriage prepaid. Payment only to be made for each portfolio after such delivery.
    “ 7th. No terms, conditions, or representations other than here printed will be binding on subscriber or publisher; azzd the szzbscriber hereby acknowledges receipt of a copy of these terms.
    “Enoch Earle.”
    The declaration also contained a count on an account annexed, the first item of which was, “Nov. 3, 1883. To Portfolio 3, Art Treasures, $15,” and the second, “Jan. 26,1884. To Portfolio 4, Art Treasures, $15.”
    The answer denied that the defendant signed the cozztract; alleged that, if he signed it, he was induced to do so by certain false and fraudulent representations made by the agent of the plaintiff, that no portfolios were delivered to .him, and that, if delivered, they were of no value, and not equal to the sample shown him, or as required by the terms of the contract; and denied that the plaintiff had performed his part of the contract, or that the defendant had refused to perform his part thereof.
    Trial in the Superior Court, before Hammond, J., who allowed a bill of exceptions, in substance as follows:
    The plaintiff introduced evidence tending to show that he delivered the first portfolio under said contract, by the Adams Express Company, at the house of the defendant, some time in July, 1883, for which he received, some time afterwards, a check for $15, from the defendant; that, some time in August or September following, the plaintiff, by said express company, delivered a second portfolio, under said contract, at the defendant’s house, for which he afterwards received the defendant’s check for $15; that, some time in October following, the plaintiff sent to the defendant’s house by said express company another portfolio, which the defendant refused to take; and that the remaining seven portfolios were never delivered to the defendant, although the plaintiff had been ready to deliver the same, but the defendant refused to accept them, and notified the plaintiff of his refusal.
    The defendant offered evidence to show that his signature to said contract was obtained by certain false and fraudulent representations made to him by the plaintiff’s duly authorized agent, upon which representations the defendant relied; but, it being admitted by him that he had neither returned nor offered to return the portfolios received, as above stated, by him, the judge excluded this evidence.
    The defendant also offered evidence of certain statements made by the plaintiff’s agent to the defendant as to the place where his name and address would appear upon said portfolios, and the way and manner in which said name and address would be printed and would appear, as provided in the fifth clause of said contract; which evidence was excluded.
    It appeared, or was admitted by the parties, that one Prentice, who occupied a tenement in the same house with the defendant, had made with the plaintiff a contract similar to the one between the plaintiff and tbe defendant; that the portfolios for both Prentice and the defendant were sent in one package, and so delivered at the house; that, after arriving at the house, they were separated, and, by a mistake, those with Prentice’s name on the title page were delivered to the defendant, and those with the defendant’s name were delivered to Prentice, the books being in all other respects alike, and that these facts were known both to Prentice and the defendant; but that neither the defendant nor Prentice ever notified the plaintiff of these circumstances, and the plaintiff did not know of the mistake until after this action was brought. The judge ruled, that good faith upon the part of the defendant required that, if he intended to rely upon these circumstances as a non-delivery under the contract, he should have notified the plaintiff; and that, not having notified the plaintiff, he must be considered as having waived the defect, if any there was, in the delivery.
    The defendant asked the judge to rule, that, under said contract, he was not bound, upon discovering the fraud practised upon him, either to return the portfolios received, or to receive the other eight. The judge refused so to rule, and ruled that, if the defendant desired to rescind the contract for fraud, he should have returned or offered to return the portfolios.
    The jury returned a verdict for the plaintiff for $68.06, and the defendant alleged exceptions.
    
      J. R. Thayer, (E. II. Vaughan with him,) for the defendant.
    
      G-. T. Dewey, (T. Gr. Kent with him,) for the plaintiff.
   Field, J.

We are not certain that we understand the remaining exceptions. The defendant also offered evidence, which was excluded, of certain statements made by the plaintiff’s .agent as to the place where the defendant’s name and address would appear upon said portfolios, and the way and manner in which said name and address would be printed and would appear, as provided in the fifth clause of said contract. It does not appear that the defendant offered evidence that the portfolios, in respect to the special title and the printing therein of the defendant’s name and address, were not in conformity with the statements of the agent. The fifth clause of the contract was, “ Each copy of the work to contain a special title bearing name and address of its subscriber; and the publisher guarantees to furnish impressions and paper equal in all respects to tlie specimens shown.” The evidence offered was, not that the portfolios did not contain a special title bearing the name and address of the subscriber, or were not “ equal in all respects to the specimens shown ” at the time the contract was made; and it does not appear that the specimens shown did not contain an impression of a special title, complete in all respects except the name and address of the subscriber. The contract itself provided that “ No terms, conditions, or representations other, than here printed will be binding on subscriber or publisher.” It does not appear that the defendant ever complained of the manner in which his name and address were printed in the special title, or that this was one ground of his refusing to receive the portfolios.

Under these circumstances, we are not called upon to determine the extent and the application of the principle declared in Stoops v. Smith, 100 Mass. 63, to the various conceivable facts of this case. • The defendant clearly has not shown that the evidence was admissible.

It appears that the third portfolio was sent to the defendant’s house, and the defendant “refused to take” it, and afterwards refused to accept the remaining portfolios. It also appears that, after a package containing portfolios for the defendant and for Prentice, who occupied a tenement in the same house with the defendant, had been received at the defendant’s house, the copy or copies with Prentice’s name on them, by the mistake of somebody, were delivered to the defendant, and the defendant’s copy or copies were delivered to Prentice. The portfolios were in all other respects alike. These were probably the first and second portfolios. This mistake was unknown to the plaintiff until after the suit was brought, and was known to both the defendant and Prentice, and it does not appear that the defendant could not have taken possession of his copy or copies whenever he wished, or had not in fact taken possession of them. As the defendant absolutely refused to receive the remaining portfolios, and notified the plaintiff of his refusal, and gave no notice of- this mistake, and did not indicate in any manner that he relied upon it, he must be held to have waived it.

Exceptions overruled.  