Giles Lithographic & Liberty Printing Co. v. Chase

149 Mass. 459 | Mass. | 1889

W. Allen, J.

This is an action of contract to recover the price of printing advertising cards for the defendants. The defendants gave to one Power, a soliciting agent of the plaintiff, an order for the printing of one million cards, at two dollars a thousand, from manuscript to be furnished by the defendants. The defendants afterwards wrote to the plaintiff as follows: “ In reply to yours of the 11th inst., would say that the order given to Mr. Power was conditional, one of the conditions being that the order was subject to our acceptance of a finished proof, at which time the order was to be given in regular form. We write you this that there may be no misunderstanding in regard to the same.” The plaintiff replied, “ Will say that your order given conditional to the satisfactory proof was regular, as that is applied to all orders given in lithography.” The defendants subsequently sent to the plaintiff the manuscript to be printed, and the plaintiff put it in print and sent a proof to the defendants, which was examined and returned by them to the plaintiff, marked “ O. K.,” to signify their approval of it, with directions to {‘ go ahead and print.” The plaintiff accordingly printed the whole number of cards ordered, and after they were printed, the defendants discovered that a matei-ial misprint had been made by transposing two words, so that the proof of the printed cards differed materially in meaning from the manuscript. The defendants refused to receive the cards. The plaintiff tendered them, and demanded payment.

The report finds that both parties were negligent in not discovering the mistake, and that the plaintiff was negligent in making it, but that finding does not seem, to be material. We think that the contract of the plaintiff was to furnish cards according to the finished proof. The plaintiff was to put the manuscript in print, and submit a proof to the defendant, but the order for printing the cards was not to be given until the proof was accepted. The plaintiff was to furnish a sample of the printed card, and, if it was satisfactory, the defendants were to order the cards according to the sample. If there was an error in the sample, the defendants were not obliged to accept it; but if they accepted it, and ordered the cards to be furnished, they must be taken, by the construction of the agreement, to have ordered cards corresponding to the sample.

Judgment for the plaintiff on the finding.